,- - . - r - - - - - - - - -- - -- -- - ... - , -- .. - ,- . - - -- - .. - - .
3 !Legal Provisions and Case Laws
Keeping a balance between the above two concepts on possession, the legislation in
India provides possessory remedies that exist for the protection of possession even
against ownership. For example, the Limitations Act, 1963 allows for ownership by
possession in situations where the true owner does not bring a suit to defend his title
in .stipulated period of time. Adverse possession is wherein by physically occupying
the property for a long period of time, one may acquire property title without the
consent of the actual title holder, only if one possesses it long enough and meets the
legal requirements. Another example of legislation in favour of the possessor is
found in the Indian Contract Act, 1872 where S. 169 provides that when a thing
which is commonly the subject the sale is lost, if the owner cannot with reasonable
diligence be found or if he refuses upon demand to pay the lawful charges of the
finder, the finder may sell it subject to provisions.
Case Law 1: Amarendra Pratap Singh v Tej Bahadur Prajapati, Supreme Court of
India, Appeal (civil) No.11483 of 1996.
The Supreme Court explained the concept of adverse possession stating that "A
person, though having no right to enter into possession of the property of someone
else, does so and continues in possession setting up title in himself and adversely to
the title of the owner, commences prescribing title into himself and such prescription
having continued for a period of 12 years, he acquires title not on his own but on
account of the default or inaction on part of the real owner, which stretched over a
period of 12 years results into extinguishing of the latter's title."
Case Law 2: Madan Lal v State of Himachal Pradesh (2003 (6) SCALE 483],
Supreme Court of India.
The Supreme Court explained the concept of conscious possession where the court
laid down that the possession coupled with requisite mental element is conscious
possession and not mere custody without awareness the nature of the possession.
Elaborating on the mental element of the possession the court held that the word
'conscious' means awareness about a particular fact. It is a state of mind which is
deliberate or intended. As noted in Gunwantlal v. The State of M.P (AIR 1972 SC
1756) possession in a given case need not be physical possession but can be
constructive, having power and control over the article in the case in question, while
the person whom physical possession is given holds it subject to that power or
control."
