Understanding Possession and Ownership in Immovable Property Law: A Focus on Article 64 of the Limitation Act, 1963, and the Doctrine of Adverse Possession

Introduction of Possession and ownership in immovable property

Possession and ownership are two fundamental concepts in Immovable property law that determine the rights and obligations of the parties involved in a property dispute. Possession is the actual control or occupation of a property, while ownership is the legal title or claim to a property. However, possession and ownership are not always synonymous, and sometimes a person who possesses a property may not be the owner, and vice versa. This may give rise to various legal issues and challenges, especially in the context of immovable property, such as land or buildings.

In India, the law governing possession and ownership of immovable property is mainly derived from the Transfer of Property Act, 1882, the Specific Relief Act, 1963, and the Indian Evidence Act, 1872. Among these, the Specific Relief Act, 1963 provides the remedies for recovery of possession of immovable property by a person who has been dispossessed by another person without his consent or due process of law. One of the key provisions in this regard is Article 64 of the Limitation Act, 1963, which prescribes the period of limitation for filing a suit for possession based on previous possession and not on title.

Another important legal doctrine that affects possession and ownership of immovable property is the doctrine of adverse possession, which allows a person to acquire ownership of a property by possessing it for a long time without the consent of the true owner. This doctrine is based on the principle that if the owner does not assert his rights within a reasonable time, he loses them in favour of the person who has been in continuous and hostile possession of the property.

This article aims to provide a comprehensive understanding of these legal principles surrounding possession and ownership of immovable property in India. Specifically, the focus is on Article 64 of the Limitation Act, 1963, and the doctrine of adverse possession, along with relevant judgments from the Supreme Court of India.

Article 64 of the Limitation Act, 1963 concerning immovable property

Overview 

Article 64 governs the period of limitation for suits concerning the possession of immovable property based on previous possession and not on title. The plaintiff must file the suit within 12 years from the date of dispossession.

Article 64 reads as follows:
If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof notwithstanding any other title that may be set up in such suit.

The essence of this article is ‘possession’, i.e., the person who has been in actual physical possession of the property and has been ousted by another person by force or fraud can file a suit to recover possession within 12 years from the date of dispossession. The plaintiff does not need to prove his title to the property but only his prior possession. The defendant cannot raise any other title as a defence except that he has been in adverse possession for more than 12 years.

The purpose of this article is to protect a person’s possessory rights against unlawful interference by another person. It also aims to prevent multiplicity of suits and encourage speedy disposal of disputes relating to possession.

Key Judgments

Some of the landmark judgments that applied or discussed Article 64 are:

• Naran Bahara v. Mohan Majhi¹: This judgment categorizes suits for possession into two types: those based on previous possession (Article 64) and those based on title (Article 65). It also clarifies that Article 64 applies only when there is an ouster or dispossession by another person and not when there is a mere assertion or denial of title by another person.
• Devidas Krishna Salunke v. Tanubai²: This case emphasizes that the burden of proof regarding possession and dispossession within 12 years lies on the plaintiffs. It also holds that mere entries in revenue records do not confer any title or possession unless corroborated by other evidence.
• Sm. Monorama Dasi v. Anil Kumar Ghose³: This case explains that Article 64 applies to cases where the plaintiff has been in actual physical possession of the property and has been ousted by the defendant by force or fraud. It also holds that mere assertion or denial of title by another party without any act of dispossession does not amount to ouster.

Doctrine of Adverse Possession

Overview

The doctrine allows a person to claim ownership if they have possessed a property under specific conditions—actual, exclusive, open, continuous, hostile, and peaceful—for a prescribed period.

The doctrine is based on two principles: (a) neglect or acquiescence on the part of the true owner, and (b) long and uninterrupted possession on the part of the adverse possessor. The doctrine operates as a shield as well as a sword, i.e., it can be used as a defence against a suit for possession by the true owner, or as a basis for filing a suit for declaration of title by the adverse possessor.

The period of limitation for acquiring ownership by adverse possession is 12 years for private property and 30 years for public property, as per Article 65 and Article 112 of the Limitation Act, 1963 respectively.

Key Judgments

Some of the landmark judgments that upheld or discussed the doctrine of adverse possession are:

• Shri Uttam Chand vs Nathu Ram & Ors⁴: This judgment affirms that a person in possession for over 12 years can acquire ownership rights by adverse possession. It also states that once the right of the true owner is extinguished, the adverse possessor can sue based on his own title and not on the weakness of the true owner’s title.
• Kesar Bai vs Genda Lal & Anr: This judgment upholds that the plaintiffs have perfected their title by way of adverse possession and issues a decree of permanent injunction restraining the defendant from interfering with their possession. It also observes that the doctrine of adverse possession is not a positive right but a negative right that operates on the principle of estoppel.
• Rev. Sidhajbhai Sabhai & Ors vs State Of Bombay & Anr: This judgment clarifies that no benefit of adverse possession should be given to persons who encroach upon public land. It also holds that adverse possession cannot be claimed against a statutory authority or a public trust.

Interplay Between Article 64 and Adverse Possession

Commonalities and Differences

Both Article 64 and the doctrine of adverse possession are based on the concept of “possession” as a source of right. However, while Article 64 allows for the recovery of possession, the doctrine allows for the acquisition of ownership through extended possession.

Another commonality between Article 64 and the doctrine of adverse possession is that both have a limitation period of 12 years for private property. However, while Article 64 starts from the date of dispossession, the doctrine starts from the date of adverse possession.

A major difference between Article 64 and the doctrine of adverse possession is that while Article 64 does not require any proof of title, the doctrine requires proof of all the elements of adverse possession. Moreover, while Article 64 does not affect the title of the true owner, the doctrine extinguishes the title of the true owner after 12 years.

Legal Implications for Trespassers for Article 64

A trespasser is a person who enters or occupies another person’s property without his consent or lawful authority. A trespasser cannot claim ownership through hostile possession under Article 64 unless he or she can prove all the elements of adverse possession and also establish that he or she was dispossessed by the true owner within 12 years before filing the suit.

However, if a trespasser can prove all these conditions, he or she can acquire ownership by adverse possession under Article 65. This would mean that he or she has been in actual, exclusive, open, continuous, hostile, and peaceful possession of the property for more than 12 years without any interruption or acknowledgement by the true owner.

Therefore, a trespasser has to meet a very high burden of proof to claim ownership through hostile possession under either Article 64 or Article 65. Moreover, he or she may also face criminal charges for trespassing under Section 441 of the Indian Penal Code, 1860.

Conclusion of immovable property

Understanding the nuances of Article 64 of the Limitation Act, 1963, and the doctrine of adverse possession is crucial for legal practitioners and property owners alike. While both legal principles deal with different aspects of possession and ownership of immovable property, they are governed by distinct principles and conditions. Meeting the burden of proof in such cases is often challenging and requires meticulous legal scrutiny.

By examining relevant judgments and legal provisions, this discussion provides a comprehensive framework for understanding these complex issues in the context of Indian property law.