Adverse Possession: Legal Loophole That Allows Tenants, Squatters To Claim Ownership Of Property

Property law in India carries a twist that many owners either often overlook or misunderstand and which can cause them great legal hassles. This is called adverse possession, under which someone living on another person’s property for long enough, without permission, can eventually claim legal ownership, and that includes tenants, too though their path is far more complicated.

What is Adverse Possession?

Adverse possession is the legal pathway by which an outsider often described in law books as the “disseisor” takes over the rights to a property that technically belongs to someone else. The idea is counterintuitive: trespassers, if they stay long enough under the right conditions, can become rightful owners. The law doesn’t simply hand over ownership because someone squatted for a few weeks; the conditions are precise, strict, and shaped by decades of judgments.

In simple terms, adverse possession rewards possession that is continuous, open, hostile, and exclusive over a statutory period. In India, that’s usually 12 years for private property, 30 years for government land. Once that period is complete, the original owner loses rights, under Section 27 of the Limitation Act, 1963.

The Five Requirements for Adverse Possession

The law doesn’t hand over the property casually. To prove adverse possession, five boxes must be ticked:

Continuous Use: This person has to occupy the property without any break for the full statutory period

Hostile and Adverse Occupation: The possession has to be without the owner’s consent and not under any lease or license.

Open and Notorious Possession: The owner should either know about the possession, or they would eventually know that someone else is using the land.

Actual Possession: In this case there needs to be real, physical use of the property. Things like farming the land, building walls, or maintaining structures count as actual possession.

Exclusive Use: In this criteria, the occupier treats it as their own, shutting out the true owner and everyone else.

Adverse Possession Under the Limitation Act, 1963

The Limitation Act of 1963 sets the rules for adverse possession. Section 27 of the Act says: “If the owner does not act within 12 years (30 years in the case of government property), the owner’s rights are extinguished. In essence, the owner’s title to the property no longer exists and the adverse possessor now owns the property, provided all the five conditions above are met.

Adverse Possession vs Illegal Possession

Adverse possession and illegal possession are not the same. Here’s are the differences.

Adverse possession is structured. It is long, continuous, open, exclusive, and hostile possession for the statutory period. If proven, the courts may recognise ownership. Illegal possession, on the other hand, is plain trespass, such as breaking into a property, setting up camp, refusing to leave. The courts treat it as encroachment, not a route to ownership.

Indian courts have repeatedly warned that adverse possession is not a loophole to legalise encroachment. It’s an exception, a narrow one, to the normal rule of ownership.

The Supreme Court’s 2023 Ruling

In 2023, the Supreme Court sharpened the doctrine further. The ruling made three things clear:

Burden of proof lies entirely on the claimant. They need to show evidence of uninterrupted possession.

• Good faith matters claims rooted in fraud or sharp practice won’t stand.

• True owner’s rights must be respected the law is not a license for land grabs.

The Court’s intention was obvious: stop misuse while keeping the doctrine alive for genuine cases.

Good Faith in Adverse Possession: “Good faith” is a slippery phrase in Indian law. Under the Indian Penal Code, Section 52, it means acting with “due care and attention.” Under the General Clauses Act, 1897, it means acting honestly, even if carelessness creeps in. Courts juggle these two interpretations.

For adverse possession, honesty of intention is not enough; the claimant must also show possession hostile to the real owner’s rights. In cases like Neelam Gupta v. Rajendra Kumar Gupta, the court stressed that adverse possession cannot arise from mere permissive possession. A tenant who stays back quietly after lease expiry is not suddenly an owner.

Can Tenants Claim Adverse Possession?

Tenants start staying with permission, and permission destroys hostility, the core requirement of adverse possession. So, for a tenant to make the leap, several things must happen:

Termination of permission in case of lease expiry or cancellation.

Shift to hostility happens when tenants openly act as owner, not as tenants.

Public assertion when hostile possession is visible to the owner, and it is no longer a secret rebellion.

Unbroken continuity of hostile possession must last for 12 years.

The Supreme Court in M. Radheyshyamlal v. V. Sandhya (2024) reinforced this: continuation after lease expiry is not enough; the tenant must prove hostility and good faith. And if rent continues to be paid, or ownership acknowledged in any form, the claim is dead on arrival.

Agricultural and Forest Land

Adverse possession becomes even more sensitive when it touches farmland or forests.

Agricultural land: Open and notorious possession of cultivation alone is not enough without clear evidence of ownership-like behaviour.

Forest land: Practically impossible as the Indian Forest Act and conservation laws block such claims. The Supreme Court has ruled against treating encroachment as a path to ownership on government land.

Government property: Claims face the 30-year barrier and judicial scepticism. Courts rarely entertain them.

False Claims and Penalties

Courts do not take kindly to false adverse possession suits. These include:

Section 209, IPC – false claims invite fines or jail.

Section 417, IPC – cheating charges can apply.

Perjury laws – false affidavits risk prosecution.

Cost penalties – courts often impose fines for wasting judicial time.

Preventing Adverse Possession

Property owners can take preventive steps to prevent adverse possession of their properties. These include:

§  Regular inspection of the unused property.

§  Maintaining boundaries with fences or walls.

§  Acting quickly on any encroachment.

§  Drafting proper lease agreements to avoid “permission versus hostility” confusion.

FAQs

Can tenants claim adverse possession rights in India?
Yes, but only if permissive possession ends, and hostile possession is proven continuously for 12 years.

What is adverse possession in Indian property law?
It is a doctrine granting ownership to a non-owner after 12 years (private) or 30 years (government) of hostile, open, exclusive possession.

What steps must tenants take to prove adverse possession?
They must stop acknowledging the landlord’s title, act as owners, and sustain this hostile stance for 12 years.

Can a tenant paying rent claim adverse possession?
No. Rent payment acknowledges the landlord’s ownership and defeats hostility.

How does the Limitation Act govern adverse possession?
By setting statutory periods 12 years for private, 30 years for government and requiring proof of continuous hostile possession.

What are common defences against adverse possession?
Proof that possession was permissive, rent receipts, or showing interruptions in possession.

Can tenants claim adverse possession of government-owned property?
Almost impossible, given the 30-year period and strict protections on public land.