It is a common perception that if a person is in possession of the property for more than 12 years, he becomes owner of the property, but normally this concept is not being understood
in its right perspective.
Recently Hon'ble Supreme Court of India has given a judgement on this point in the case of Ravinder Kaur Grewal and others vs. Manjit Kaur and others wherein the three Judges Bench has reversed the earlier decision of the Hon'ble Supreme Court of India in the case of Gurudwara Sahib vs. Gram Panchayat village Sarthala, the view which has been there since 2014, which had earlier confirmed the view taken by the Punjab and Haryana High in the year 2009 in Gurudwara Sahib Sanoli case.
The General Public is of the view as if any type of possession if there is with any person, it would ultimately mature into ownership after the period of 12 years without understanding the meaning of the words ‘adverse’. The 'adverse possession is one where a person comes into possession of others property forcibly or otherwise without any right to hold such a possession in adverse to the rights of the owner. Further such an owner must be aware as per the evidence that such a person is in possession of his/her property without his consent and has been openly being in possession of such a property to the knowledge of the owners and the General Public in violation of the rights of the owner.
After the decision of the above said three Judges Bench case by the Hon'ble Supreme Court of India in Ravinder Kaur’s case we have received number of enquiries from the people wherein they feel that any type of possession for twelve years, if there, shall culminate into ownership. General Public does not understand that what is a difference between adverse possession and a person in possession by virtue of the permission granted by the owner to be in possession of the property whether it is by virtue of licence or as a tenant or as a mortgagee or in any other manner under authority of the owner of the property. For concept of adverse possession, the word ‘adverse’ itself shows that the possession must be against the wishes and the Will of the true owner.
The concept of the adverse possession for a period of 12 years in the case of a private property and 30 years in case of the State property is a time old concept which has developed right from the Roman law where it is felt that a rightful owner if sleeps over his rights and somebody else is in adverse to his rights, keeps on using and being in possession of his property
for such a long time means that the true owner is indirectly consenting the person in illegal and adverse possession to enjoy the same and he himself is sleeping over his own rights to dispossess such a person. On this principle, Article 65 in the Indian Limitation Act, 1963 is introduced where it has been said that the limitation of ejectment of an individual who is in adverse possession is for a period of 12 years. Article 65 says that limitation for filing of a suit for possession of an immovable property or interest therein based on the ownership title of an individual is 12 years from the date when the possession of the person in possession becomes adverse to the owner of the property.
On the basis of this principle of Article 65 many suit were being filed by the persons who were in possession of the property against the rightful owner alleging therein that such a person is in adverse possession of the property for more than 12 years, therefore, his rights have culminated into title on the property and thus he has become owner of such a property. This concept has been going on and suits were filed and they were also allowed in case it was found that the adverse possession was for more than 12 years. But in the year 2014, the Hon'ble Supreme Court of India in above mentioned Gurudwara’s case said that this is the defence which can be taken by a person in possession in case the true owner files a suit for possession and it is does not give right to such a person to claim his ownership. Meaning thereby Article 65 of the Limitation Act was said to be a weapon of defence for a person in adverse possession and not a weapon of offence, whereas in the recent judgement of Ravinder Kaur’s case, the Hon'ble Supreme Court of India has said that the Article 65 is also a weapon of offence and such a suit can be filed by a person who is in adverse possession to claim ownership in the property.
This judgement and Article 65 of the Limitation Act has far reaching ramifications particularly for the people who are absentee owners or who are far away like the Non-Resident Indian (NRIs) living abroad and they have no opportunity to look after their property in such cases sometimes the occupiers of the building, who even if have been given just license to be in occupation without rent or without any document to occupy the premises like the Non-Resident Indian (NRI) giving right to his or her friend or the relation to be in occupation of such a property, then such an individual who has a malafide intention can claim the ownership in the property alleging there the possession is adverse against the rights of such Non-Resident Indian (NRI) and thus claim ownership over such a property.
Therefore, in nutshell, the judgement is a caution to all such people who are absentee owners of the property and whose property is in possession of someone else who can claim the adverse possession. Some nefarious people even if inducted in possession with the consent of the owner like being the licensee or even a tenant, if the owner cannot prove the tenancy or license, can always claim in court of law that they are in adverse possession and can bring such evidence to show that they were in adverse possession, so that they can claim ownership of the property. Therefore, it is admissible that one must have proper documentation at the time when the possession is given even if it is given as a licensee or a tenant or otherwise, there should be writing as to the status of such an occupier in the property and further if no such documentation was there, then it is advisable that as early as possible one should come into action to take back the possession of the property in case the other person can claim to be in adverse possession of the property.