Possession in essence means holding an immovable property in
possession with or without title of ownership.It is a continuous act of
claiming exclusive use of the property as if the holder owns the property to
which he may or may not be having right to ownership.Possessions are of
various types.Adverse possession, symbolic possession, possession under an
irrevocable power of attorney, possession under lien and possession under part
performance of a contract are a few important ones.
A person in actual possession of an immovable property has
certain right and interest in the property he is holding. The possessor has
such a strong control over the immovable property that he can keep out others
from occupying it. Unless otherwise proved possession may be taken for granted
as title of ownership. Mere possession of an immovable property does not mean
that the person is the real owner of the property.
Holding a property after a decree is passed for vacating it,
even though enough time is given for vacating the premises, is wrongful and
cannot be termed as permissive possession. Possession, occupation and ownership
are not one and the same. Possession means not only physical possession (or
constructive possession) of a property but also full control over it.
Occupation means the right to hold and occupy a property.Ownership means
lawful possession of a property, which may not come with actual property
possession.
A landlord gives his agricultural land to a tenant for
cultivation. Though the property is the same, the rights enforced are
different. The landlord possesses the land without occupation and the tenant
cultivates the land without possession. The mere right to cultivate does not
confer the right of possession on the tenant. Similarly, in a mortgage, the
tenant as the mortgagee is in actual physical possession of an immovable
property and the landlord as the mortgagor is the true owner of the property.
Here the mortgagee possesses the property without ownership and the mortgagor
owns the property without occupation. Possession is temporary. Ownership is
permanent.
Adverse Possession
Adverse Possession means a person possessing an immovable
property, which is unfavorable, unhelpful or harmful to the interest of the
rightful owner. Adverse possession is possession of a property by a person on
his behalf or on behalf of some other person on which the true owner has a
right to immediate possession.
If, however, the true owner does not enforce his right within
the time limit stipulated in the Law of Limitation, the possession of the
property becomes adverse to the true owner. The result is that the true owner
not only loses his right, title and interest in the property but also cannot
maintain a suit in a court of law.
Possession must be hostile in total denial of the title of
the true owner. The Possessor must be in actual possession of the property
under a claim of right. The property must be in his continuous possession and
the people in the neighborhood must know that he has been staying on the
premises peacefully and continuously for a long period of time and paying taxes
in his name so as to show that the title of property is adverse to the true
owner. It must be open and hostile enough for the interested parties to come to
know of it.
A person, who exclusively holds an immovable property
physically, openly, peacefully and without interruption by the true owner for a
period of 12 years or more, is considered to have acquired the ownership and
title of the immovable property by adverse possession.The expression adverse possession indicates a hostile or unfriendly possession, which is either
expressed or implied in open denial of the title to the true owner.
Adverse possession is a one-sided act. Therefore, it cannot
be documented. A person holding a property for a long time does not mean that
title of the property is denied to the true owner. The possession turns adverse
only when the rights of the possessor and true owner do not match. The person
holding the possession of the land should hold the same on his own behalf or on
behalf of some person other than the true owner, while the true owner all along
has a right to immediate possession of the property.
Further the possessions to constitute adverse possession should
be exclusive and actual physical possession. It is not at all necessary that
the true owner should have actual knowledge of the adverse possession so long
as it is open and the interested parties have knowledge of it. Also, it is not
necessary that the person claiming the title of adverse possession should know
who the real owner is. The mere possession of a property by a trespasser does
not constitute adverse possession unless the same is accompanied by open
assertion of hostile title.
Mr. A, who claimed to be a ‘thika tenant’ since 1966 was
renting out the property to tenants. However, he had all along been claiming to
be the constituted attorney of Mr. B. It was only since 1975 that Mr. A started
depositing rent in his own name. Mr. A filed a suit in 1982 for permanent
injunction seeking to restrain the owner from taking over the property from
him. The court heard Mr. A’s case and held that Mr. A had been a trespasser on
the property since 1970, but started asserting his rights only from 1975 and not
earlier. The court held that the suit filed in 1982 was premature, as by the
time the suit was filed,Mr. A. had not been in adverse possession of the
property for 12 years. I Hindu Joint Family, a member holding the family
property cannot be adverse or unfavorable to other members of the family. All
the family members treat the possession of the property by one member as
possession by all family members. In the same manner the elder brother of the
family collecting rent and revenue is not considered a hostile act against the
other family members.
When a party accepts that possession of a property has been
given on the basis of lease, mortgage, agreement to sell, the possession can
never be adverse. A property does not become adverse if it is given under part
performance of a contract. Possession of the property with the permission of
the owner does not become adverse by a mere change in the mental attitude of
the person in possession. Permissive possession never becomes hostile, till
there is assertion of a hostile possession to the knowledge of the owner.
A person claiming right and title by adverse possession has
to give concrete evidence to the fact that he had exclusive, peaceful and
continuous possession of the property for a period of 12 complete years as
prescribed in the Limitation Act. Title to the property by adverse possession
must always be proved with bare facts.
Symbolic Possession
Symbolic possession of a property is given to he purchaser
when an immovable property is sold in auction. In that event the third party in
actual physical possession of the property must be kept informed.
Possession under an Irrevocable Power of Attorney
Under an irrevocable power of attorney, the attorney
possesses the property and transacts it on behalf of the executor. The attorney
signs and executes all documents and completes the transaction as if the
executor himself personally did all the transactions. Sometimes, a creditor
holds an immovable property against certain debts. This is known as possession
under lien. The right to possession comes to an end when the owner of the
property clears the debt. Generally, banks have a right to retain a property
till the charges are cleared.
Possession as Part Performance of a Contract
Possession of an immovable property is also
given as guarantee for part performance of a contract. A possessor of this kind
of property will not have right or title in the property, but he will have the
right to resist any attempt by the transferor to take over the property from
his possession. In this case the right of the true owner of the property is
also affected, since he cannot enforce his right after possession has been
given to the transferee.
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