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Limitation Period for Property - Recovery of Possession: A Complete Guide for Advocates

Property disputes involving recovery of possession are governed by Article 65 of the Limitation Act, which prescribes a 12-year limitation period. The law is grounded in the doctrine of adverse possession — a person who remains in uninterrupted, open, hostile, and exclusive possession of property for 12 years may acquire title, extinguishing the original owner's right to sue. For advocates handling property matters, the starting point of the 12-year clock is often the most contested issue in litigation.

How is the limitation period calculated?

1. Identify the date the defendant began adverse possession — the date of dispossession or the date hostile possession began.
2. The possession must be (a) actual, (b) open and notorious, (c) exclusive, (d) hostile to the true owner, and (e) continuous for 12 years.
3. Count 12 years (4,380 days) from the date of adverse possession — this is the last date for the true owner to file.
4. For government-owned property, the limitation is 30 years under Article 112 of the Limitation Act.
5. In cases of co-owners, possession by one co-owner is not adverse to other co-owners unless there is clear ouster.

Important rules advocates must know

• The Supreme Court in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan clarified that adverse possession claims are to be construed strictly — all elements must be proved.
• The Law Commission (210th Report) and the Supreme Court have expressed concern about adverse possession extinguishing title — an amendment has been proposed but not yet enacted.
• Tacking (adding up periods of different trespassers) is permissible if possession is continuous and unbroken across the chain.
• Filing an ejectment suit stops the running of limitation — but the suit must be diligently pursued.
• For properties under a lease or licence, adverse possession cannot run against the licensor/lessor during the subsistence of the lease.

Common mistakes to avoid

• Confusing the date of last lawful possession with the date of adverse possession — limitation runs from when adverse possession begins.
• Assuming possession by a tenant is adverse — it is not, as tenants acknowledge the landlord's title.
• Missing the 12-year deadline by even a day — courts have held that once limitation expires, the owner's right to sue is extinguished.
• Not accounting for the 30-year period for government property — Article 65 (12 years) applies only to private parties.