ADVERSE POSSESSION DEPRIVES YOUR OWNERSHIP RIGHTS

(Advocates, Property advocates in Bangalore, Property lawyers in Bangalore)

Actual Possession of an immovable property is one of the basic criteria considered for ascertaining the ownership over such property.In other words, a person can be in continuous possession of a property for several years without title giving an opportunity to claim ownership of the property by adverse possession.The person claiming ownership rights over the property on the basis of having physical possession after the expiry of the stipulated time of 12 years is termed as ownership by Adverse Possession.However, the real owner is not deprived of his ownership of the property by the mere fact that the some stranger is in continuous occupation of the same if the owner takes action by enforcing his ownership rights within a reasonable time.The term reasonable time is based on the provision envisaged in the Law of Limitation.

Adverse Possession: 
The occupation or possession can be termed as Adverse Possession when a person is possession of an immovable property, which adversely affects and deprives the interest of the real owner over such property.Thus,the term adverse itself indicates a hostile or unfriendly possession, which is either expressed or implied thereby denying the title of the true owner.

Ingredients to constitute Adverse Possession: 
The mere fact that a person is in occupation of an immovable property does not by itself convey or give an opportunity to claim ownership by Adverse Possession. There are certain necessary ingredients that are to be proved for acquiring title by way of adverse possession.  

Possession of the property: 
The foremost per-requisite to put-forth a claim for adverse possession is that the said person has to be in actual possession of the property.Possession is quite distinct from title and can be independent of it.Further there is a difference between possession and mere occupation.Possession in the context of claiming title by way of adverse possession means physical occupation, coupled with the intention of holding the property under occupation to the exclusion of owner.Thus, mere possession of a vacant piece of land or sharing of possession with others without any exclusive possession or without hostile assertion against the real owner would not constitute adverse possession as recognized by various High Courts. 

Continuous possession: 
Another essential aspect is that the person who intends to claim title by way of adverse possession must be a person who exclusively holds the immovable property openly, peacefully, enjoying without interruption by the true owner.  

Adverse to the interest of the Owner: 
It is also important that the stranger must be in possession of the property with intent to deprive the rights of the real owner thereby adversely affecting the interests of the real owner. 

Knowledge of the real owner:
Generally, owners will convey possession of the property in favor of another on the basis of some kind of contract, whether express or implied. For instance, a person can be in occupation of a property as a tenant or licensee or in any other capacity, which based on some relationship.Unlike the above, in the case of adverse possession, the person in occupation of the property need not be necessarily a trespasser or a stranger to the owner and the fact that such a person is in continuous occupation of the property is well within the knowledge of the real owner, who does neither object nor bother to interrupt such possession.

Further, the people residing in the vicinity or neighborhood must also know about the stay of that particular person in the property.In other words, the occupation of the property by that particular person must receive adequate publicity. It is not necessary that the true owner should have actual knowledge of the adverse possession so long as it is open to be ascertained and the interested parties have knowledge of it.However law does not help a wrong-doer who obtains the possession of another’s property in a clandestine manner and has concealed the knowledge of possession from the person who is the rightful owner.

Statutory period of 12 Years: 
Apart from the above, it is also very important that the person claiming ownership over the property without having lawful title can claim the property by way of adverse possession only after completion of 12 years from the date of taking over possession.However, the mere fact that the person has been in actual possession of the property for more than 12 years itself does not give a right of adverse possession. The period of 12 years, provided under the Limitation Act, has to be proved along with sufficient evidence of existence of all the above explained essential ingredients. 

Assertion of right by the Owner: 
Further, the owner should have failed to assert his right over the property inspire of having knowledge about the occupation of the property by a stranger.Law does not favor those who sleep over their rights inspite of being aware of the fact that the occupation of the premises by the stranger is hostile to the ownership rights. In fact,Law of Limitation provides an opportunity to the owner to assert and enforce ownership rights within a period of 12 years, which runs from the date when there is an intention of the person claiming adverse possession to acquire the property which belongs to another person and runs against the interest of the true owner having a right of immediate possession.

Thus, the mere fact that the person is in possession of the property does not confer ownership rights unless the same is accompanied by an open assertion of hostile title.In fact, the possession turns adverse only when the right of the possessor and the true owner does not match.The person holding possession of the land should hold the same on behalf of some person other than true owner, while the true owner all along has a right of immediate possession of the property, but never makes an endeavor to enforce his right over the property.

Instances of Adverse Possession: 
If there is a situation that possession has been taken over by a trespasser or any other person,whose possession was originally lawful, but became unlawful subsequently.The trespasser claims ownership over the property, while the owner is not inclined to take any action.The trespasser starts paying taxes and starts dealing with the property for more than 12 years claiming interest against the owner. In such case, the chances of the owner losing the property are very high.

There is no law which says that possession cannot be acquired by force or by a person who does not have title.All that matters is the mode in which the title is acquired.The rationale behind the concept of law of adverse possession is that Law does not always help those who sleep over their rights without asserting their rights within the permissible period when some person is deliberately trying to act which would adversely affect the interest of the owner.

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