Tuesday, 1 April 2014


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 of 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 others out from occupying it. Unless otherwise proved, possession may be taken 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 after enough time is given for vacating the premises, is illegal and cannot be termed as permissive possession, 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 physical possession of property.

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 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 of immediate possession. If, however, the true owner does not enforce his right within the time limit stipulated under Law of 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 by open denial of the title of 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 can be denied to the true owner.Possession turns adverse only when the rights of the possessor and the true owner do not match. The person holding 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 of immediate possession of the property.

Further possession 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 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 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, but started asserting his rights only from 1975 and not earlier. The court held that the suit filed in 1982 was pre-mature, as at the time when the suit was filed, Mr. A. was not in adverse possession of the property for 12 years.

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