Introduction 

On account of rapid industrial development and uninterrupted ever-growing urbanization the demand for land for development residential, commercial, industrial, as well as for establishing larger modern farmhouses has increased tremendously and so is the need for investigating the title of such properties, in order to avoid deceit, suppression and exploitation. 

A search into the ownership of the property of the person is called the investigation of title. This is carried out on behalf of the person who may be interested in the property either as a purchaser or in the capacity of a creditor or a lender who is to accept the property or land as a security. The creditor or lender is interested in getting the property (i.e. its ownership) investigated, so as to ensure, that the title of the property is quite clear and that he is assured of the repayment of advances made in favour of the said property owner.

OBJECT OF INVESTIGATING THE TITLE:

The investigation is carried out broadly with the intentions that:

• to make sure that the ownership of the property is complete in all respects and also fair and free from any doubt;

• there is no risk and the property is free from any conflicting interests. 

WHAT DOES HAVING AN OWNERSHIP/POSESSION OF THE PROPERTY MEAN? 

Control over the land is possible only when one is having actual physical contact with this said land. The word possession denotes a continuing contact with the land. This also exhibits mental element to possess the property and use the same to the exclusion of others. The possession of the land is therefore legally placed side by side with the ownership of it, consequently a person not the owner of the land, becomes its owner. Whereas the owner dispossessed on account of his continuous absence of any contact with the land loses its ownership. In short possession is the most important component of ownership. The possession of the land is also considered prima facie evidence of the title to the said land. In common parlance “possession is 90% ownership.”

IS POSSESSION AND OWNERSHIP THE SAME?

A possession of the land for a very long period is taken up as a sufficient condition for granting ownership and also assigning the title even though the property belonged to another person. It must always be remembered that the possession of the land matures into its ownership, in the course of time by legal orders. It may also be possible that the possession as a right can also be gained under a mutual agreement between the owner and the possessor. There have also been several instances, particularly in remote forsaken villages and towns where possession of land of many persons maybe by usurption as these lands have been abandoned and remained unclaimed for over a long period of time. It can therefore be concluded that the possession is the badge of ownership of the land.

ADVERSE POSSESSION

Adverse possession that is continued possession over a period of time is one of the methods of acquiring title to land or property. For the actual owner of the land the title to land is lost by adverse possession being proved by the person even though that person is wrongfully possessing the land. There is no statutory definition of adverse possession. Generally, it can be understood as a possession which is adversed or opposed to ones interest of the real owner of the property. Therefore, mere possession even for a long time without a claim of right does not create adverse possession, as there is absence of intention of using others property adversely, to his own interest therein. In short, adverse possession means hostile possession which is explicitly or implicitly in denial of the title of real owner.

Because law of limitation does not concern with the bona fides of the person who has adversely possessed the land the person adversely possessing the land is converted into a valid possessor, provided it is established that the possession of the adverse possessor continues for the full period of 12 years as stipulated in the statute, for whatever maybe the cause. If the continuity in possession is broken, the adverse possessor fails to acquire title under the statute.[1] 

12 YEARS OR 30 YEARS OF SEARCH?

In order to ascertain the validity of the title, it is important to trace the chain of title of the property for the period of 30 years (“Full Search”). There exists another thought in this regard. Some think that tracing out the chain of title for the period of 12 years is sufficient (“Limited Search”). This opinion of theirs is based on the point of limitation period for action for claiming relief against adverse possession is 12 years and they therefore ignore searches beyond that period (i.e. 13 years). However, searches for a period of 30 years benefits the seller/buyer in truly identifying the defects in the title and subsequently correcting or remedying the same. 

Conclusion

In Conclusion, depending on the nature of the transaction, the objective of the parties and the value of the property involved, it is decided whether a Full Search or a Limited Search can be conducted. However, Unlike Full Searches, in a Limited Search, the search relating to the history of the property may be limited to restricted aspects such as recent title history, encumbrances on the property, disputes related to the property etc.

-  Krutika Jain, Associate

Solomon & Co. 

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About Solomon & Co.

Solomon & Co., Advocates & Solicitors (Firm) was founded in 1909 and is amongst India’s oldest law-firms. The Firm is a full-service law firm that provides legal service to Indian and international companies and high net-worth individuals on all aspects of Indian law. 

“Disclaimer” 

The information contained on this article is intended solely to provide general guidance on matters of interest for the personal use of the reader, who accepts full responsibility for its use. The application and impact of laws can vary widely based on the specific facts involved. As such, it should not be used as a substitute for consultation with a competent adviser. Before making any decision or taking any action, the reader should always consult a professional adviser relating to the relevant article posting.

[1] R.V Bhuskute’s Record of Rights and Investigation of Title, by Mukund Publications.