• Adverse Possession Rights of XYZ: Cultivator of Family-Owned Agricultural Land

If XYZ is listed as the kashtkaar (cultivator) of 15 acres of agricultural land owned by A, B, and C, where A is XYZ’s father, B is XYZ’s sister, and C is XYZ’s uncle, and all three are not on good terms with XYZ.

Can XYZ claim this land under adverse possession? 

XYZ has been living in the U.K. for 20 years but has been cultivating the land through his workers in India. The total land is distributed as follows: A owns 7 acres, B owns 4 acres, and C owns 4 acres. XYZ has been listed as the kashtkaar for this land for 25 years. Can XYZ claim ownership of the land through adverse possession despite the familial relationships and the fact that he never had good terms with A, B, and C?
Asked 1 year ago in Property Law
Religion: Sikh

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5 Answers

Difficult for XYZ to claim adverse possession 

 

2) in family possession of one is regarded as possession of all 

 

3) Possession given to family members is generally considered natural and passively permissive

 

4) 

is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous.

b) The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner.

c) It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period

Ajay Sethi
Advocate, Mumbai
99779 Answers
8145 Consultations

The possession required must be adequate in continuity, in publicity and in extent to show that it is adverse to the owner. In other words the possession must be actual, visible, exclusive, hostile and continued during the time necessary to create a bar under the statute of limitation.

It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years.

A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the  evidence.

Plea of adverse possession is not a pure question of law but a blended one of fact and law.
Therefore, a person who claims adverse possession should show:

(a) on what date he came into possession,

(b) what was the nature of his possession,

(c) whether the factum of possession was known to the other party,

(d) how long his possession has continued, and

(e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.

T Kalaiselvan
Advocate, Vellore
89978 Answers
2492 Consultations

If xyz had a permissive license of a cultivator and he is cultivating the land till today, then how can he claim any adverse possession!

Adverse possession can only be claimed in those cases where the person has absolutely no right whatsoever in the property and despite that he squats on the property under the nose of the true owner and asserts ownership right in himself 

That is not so in your case 

However if you can show and prove that A B and C had terminated your license to cultivate their land and despite that you still continued to be in possession of the land and began to assert ownership right in yourself,  then you would have a case. However proving it would be a task 

Yusuf Rampurawala
Advocate, Mumbai
7899 Answers
79 Consultations

- As per Supreme Court Judgment, provisions on adverse possession are made under the Limitation Act, 1963. In case an owner does not stake his claim over his property for 12 years, a squatter can acquire legal rights over the property.  The prescribed period in case of for government-owned properties is 30 years.

- Further, to claim his ownership, this squatter has to prove that his occupancy of the property has been uninterrupted for the entire period. You cannot break the period into halves.

- Further, he will also have to prove that he has been the sole occupant of the property. There cannot be under the provisions of the law multiple claimants.

- Further, the squatter will also have to let his intentions known to the owner, with an element of hostility into his action. Starting reconstruction work, for instance, would amount to a squatter's attempt to claim ownership.

- Further, as per Supreme Court , It is a settled law that there can be no adverse possession among the members of one family for want of any animus among them over the land belonging to their family.

- Hence, adverse possession not applied within family members , whether the land was encroached for a period of 12 years or any long period. 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

XYZ is described as the cultivator (kashtkaar) and has been managing the land through laborers, indicating actual and exclusive possession.
XYZ has been listed as the cultivator for 25 years, which meets the need for continuous possession.
Being listed as the kashtkaar over an extended period of time can meet the requirements for open and notorious possession.
This is where the familial ties and terms with the owners (A, B, and C) are critical. Hostility implies that XYZ's possession was without the permission of A, B, and C. If XYZ is cultivating the property with their permission, it would not be deemed unfriendly.

If A, B, and C allowed XYZ to cultivate the property, even implicitly, then XYZ's possession may not be termed hostile, which is an important aspect of unfavorable possession.
XYZ must produce unambiguous evidence that his possession was hostile and without authority. Being designated as a kashtkaar is substantial evidence of possession, although it does not necessarily imply enmity.
Even if XYZ fits all of the criteria, asserting adverse possession often requires a judicial declaration. XYZ would have to file a lawsuit for declaration of title based on adverse possession and demonstrate all factors in court.

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

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