Adverse possession, section 28 of the Limitation Act

Adverse possession occurs when someone is in actual possession of a property for a continuous period of time in public by denying the ownership of another. Legal jurisprudence described that always be aware of your rights. And the law never gives any remedy by itself, a remedy has to be sought. In today’s article, I will discuss in detail how your rights can be extinguished from an immomable property. According to the Limitation Act, your right to your property can be extinguished after a certain period of time.

Analysis of Limitation act

Tamadi (Limitation) means extinction or cessation. The time limit for filing a suit is fixed by Limitation Act. The Limitation Act is mainly aimed at solving legal complications. The Limitation act is based on the principle that the law helps the diligent and not the indolent. If a person is indolent or neglectful of his rights, the law will not provide him with any subsequent remedy.

In a word, the purpose of this law is to ensure that the debate on an incident starts and ends within a certain period of time and that peace and order are maintained in society.

Section 28 of the Limitation Act

Section 28 of the Limitation Act states that if a suit is not filed within the period prescribed by this Act for a person to file a suit for possession of any property, the person’s right to that property shall be extinguished. To understand this section we have to look at Section 8 of the Specific Relief Act and article 142 of the Limitation Act.

Section 8 of the Specific Relief Act provides for recovery of specific immovable property and article 142 of the Limitation Act states that a suit for recovery of property under Section 8 has to be filed within 12 years from the date of expropriation. However, if someone wants to forcibly occupy any property in your possession, then you can bring a temporary injunction order under section 144 of the code of Criminal Procedure.

So now if you review section 28 of the Limitation Act, it is clear that if you are dispossessed from any land, if you do not file a suit for recovery of property within twelve years of dispossession, then you will lose your right from that property.

How property rights can be extinguished

Basically, the main content of section 28 of the Limitation Act is the acquisition of ownership of land by occupation. The limitation act creates ownership, and right on a property without deeds. There are generally two ways in which ownership rights or assets are extinguished.

Adverse possession

Adverse possession occurs when someone is in actual possession of a property for a continuous period of time in public by denying the ownership of another. Adverse possession is created in a property if any person other than the owner continues to occupy and enjoy it for a period of more than 12 (twelve) years.

Also, if the true owner does not file a suit even after twelve years of dispossession, he loses his right to the property. The case of Dalimon Nesha Bewa vs. Md. Hasmat Ali (61 DLR, AD 8) dealt with the acquisition of property or ownership by adverse possession. The judgment, in this case, said, “From the evidence on record and the surrounding circumstances, it appears that the defendants have been in possession of the suit land for more than 12 years and claim the adverse title against the plaintiff or their predecessors in title and they were completely evicted and thus the right of the plaintiff, The title and interest, which they claim to have acquired in the said property, has been extinguished by adverse possession and an adverse possession has been created in favor of the defendants.”

Hence it can be said that long tenure creates ownership, right, and ownership in the property, without the need for any documents.

The right of easement

Sections 26 and 27 of the Limitation Act deal with the easement. Right of easement means a right arising from long-term use of any land, water or waterway, light, or air. The right of an easement does not arise in the case of any land unless it is necessary.

The said section further mentions that the use or easement must be open and peaceful to create an easement. However, in the case of acquiring the right of easement, 20 (twenty) years of continuous use must be used in general property and 60 (sixty) years of continuous use in the case of government property.

According to legal scholar Salmond, the logical basis is the presumption that possession and ownership always go together. Possession is evidence of ownership. If the owner of a property is not in possession of the property, he is presumed not to be the owner. Again the occupier is also assumed to be the owner.

Right to property is not created by forceful possession

If someone takes possession of another’s property by conflict or force, then it is called forceful possession. Forcible possession is completely illegal in the eyes of the law. Even if someone occupies a property by force for 12 years continuously, his right will not arise in that property.

Generally speaking, both forcible possession and adverse possession are possession of another’s property. But the difference is that through adverse possession, a certain right is created after a certain period of time in the specific property and no right is ever created in forcible possession.

Forcible possession may be done mainly by intimidation or use of force or covertly by intimidation of the beneficial owner. One thing is clear that the adverse occupier can claim his right through a suit under section 28 of the Limitation Act in the Civil Court and it has a legal basis but no occupier can sue in court for any property right.

Thus, even if someone takes possession of the property by force, there is a provision to file a suit for recovery of possession under Section 9 of the Specific Relief Act.

Case reference

Many cases have already been filed and settled under Section 28 of the Limitation Act. There are various criticisms for and against this trend across the country. Let us see the judgments of some of the cases decided under this section.

(59 DLR, AD 210) In this case, the High Court Division held that the plaintiff-respondent was able to prove that he was in possession of the suit property for more than 12 years prior to the suit, which was established by adverse possession against the defendant-respondent.

(52 DLR, AD 121) in this case held that possession by permission, however long it may be, confers no right on the occupier or his successors. It is well-settled that when possession is commenced by permission it will not be opposed unless something to be opposed is specifically done—in the hands of the heir, or even in the hands of the original permissive possessor.

The court has given its own observations in the judgment of many other such cases. Judgments in these cases can be used as precedents for lower courts.

Conclusion

A right of long easement arises if a person is able to use another person’s property without hindrance for a long period of time. And in this way rights can be acquired in others’ property. Again, if the real owner is not in possession of the property for a long time, his right to the property is destroyed or extinguished. That is why it is said that Limitation law not only abolishes rights but also creates rights of a property.

So, if the property is vacated or in the possession of someone else for a long time, a case must be filed in the civil court within a specific time limit to recover it. Section 8 and 9 of the Specific Relief Act provide for recovery of possession of immovable property and recovery of possession of the expropriated property.

Read in Bangla also.

Shipta Barua
Shipta Baruahttps://legalhome.org
Shipta Barua has been Completed LL.B(Hon's) from Cox's Bazar International University and completed LL.M in Human Rights at Southern University Bangladesh. Writing and discussion about the critical and important topics of law in his choice. For primary Legal support and enrich to the general people legal knowledge he working in the Legal Home.

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