Adverse Possession

By Team Legal Helpline India, December 25, 2014

Adverse possession explained in brief by our legal experts.

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Section-110 Indian Evidence Act
Burden of proof as to ownership-
When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

This section deals with the law of adverse possession and is very important section of the Indian Evidence Act of 1872 especially with regard to the claim of the title of property. Law of Adverse Possession contemplates that where a party is in possession of the property and another party claims that he is the owner. This section relating to adverse possession thus contemplates that a presumption of ownership arises from possession as any party generally owns the property they possess. Possession is a substantive right, which is transferable and heritable, and by itself constitutes good title against everyone except the true owner. A party in possession of any property without title has an interest in it. Possession in law is a substantive right which exists and has legal advantages apart from true owners title. It has two-fold value, on the one hand, possession gives the evidence of the ownership which is the foundation of a right to possession. The law of adverse possession is thus a fiction created under the law for claiming the right to property under possession by a person against whom the other party is claiming the title

In various judgments passed by the courts from time to time it is now well established that adverse possession is a good title against all except than that of the true owner of the said property. Possession thus entitles the possessor to maintain an action for ejectment against any person, other than such owner, who dispossess him. A presumption of an origin in some lawful title may in certain circumstances be made to support possessory rights long and quietly enjoyed where no actual proof of title is forthcoming but presumption cannot be made where there is sufficient evidence and convincing proof of the title of the property in question. The presumption of possession following title is very much limited in its application, as it arises only where the evidence as to possession is conflicting or evenly balanced. In a case where the evidence as to possession is equally unreliable both the sides stands on the same footing as a case where there is no evidence of possession and that , since in suit is governed by Section 145 of the Limitation Act the onus of proving possession within 12 years before suit is on the plaintiff. In another case when a party claims title and the defendant who is in possession can plead adverse possession under Section 144 of the Limitation Act, the burden of proving adverse possession is on the defendant i.e. the party pleading or claiming the right to adverse possession of the said property.

The true meaning of proof of possession is that the presumption of title from long possession can be called in aid, the possession must have been prima facie lawful, long and continuous so as to lead to an inference that the person in possession really has a title though he is unable to trace it. The issue of adverse possession is a mixed question of law and fact, the evidence as to possession must give the various acts of ownership done by the person claiming to be in possession. Acts of possession over a part of any immovable property may in many cases be evidence of de-facto possession of the whole. Adverse possession thus entitles the right to the person in possession of the property to enjoy the same on the basis of his adverse possession.

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