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About The Adverse Possession

Context:

The 22nd Law Commission has said in its recent report that there is no justification for introducing any change in the law relating to adverse possession.

Relevance:

GS II: Polity and Governance

Dimensions of the Article:

  1. Adverse Possession
  2. Provisions of the Limitation Act, 1963
  3. Main ingredients of adverse possession are as follows
  4. Why did the SC suggest changes to the law on adverse possession?

Adverse Possession

Concept of Adverse Possession:

  • Adverse possession involves the hostile possession of property that must be continuous, uninterrupted, and peaceful.
  • It promotes the judicious use of land, ensuring it is not left vacant and encouraging productive utilization.

Rationale behind Adverse Possession:

  • According to the Law Commission’s report, adverse possession aims to prevent long-standing doubts over land ownership.
  • It benefits society by allowing someone to make use of idle land left by the owner.
  • It provides protection to individuals who have regarded the occupant as the rightful owner of the property.

Support from Legal Maxim:

  • The legal maxim that the law does not protect those who neglect to enforce their rights supports the concept of adverse possession.
  • If the original title holder fails to assert their rights over the land for a significant period, they cannot reclaim it later.

Historical Basis and Development:

  • Adverse possession can be traced back to 2000 BC, finding its roots in the Hammurabi Code.
  • The historical basis of “title by adverse possession” stems from the development of statutes of limitation in England.
  • The Statute of Westminster in 1275 was the first such statute, but the Property Limitation Act in 1874 set the groundwork for limitations on land recovery actions.
  • The “Act XIV of 1859” attempted to introduce the law of limitation to British India, regulating civil suits.
  • The passage of the Limitation Act in 1963 brought significant changes to the law of adverse possession in India.

Provisions of the Limitation Act, 1963:

Shift in Burden of Proof:

  • The true owner of the land is now only required to prove their title, while the burden of proof of adverse possession falls on the person claiming it.

Time Period for Acquisition of Ownership:

  • Under the 1963 Act, a person in possession of private land for over 12 years or government land for over 30 years can become the owner of that property.
  • Articles 64, 65, 111, or 112 of the 1963 Act pertain to suits for possession of immovable property.

Article 65 – Adverse Possession:

  • According to Article 65, a person in adverse possession of immovable property can acquire title to that property.
  • The possession must be open, continuous, and in defiance of the title of the real owner for a period of twelve years.

Article 64 – Suits Based on Previous Possession:

  • Article 64 governs suits for possession based on previous possession and not on title.

Article 112 – Adverse Possession of Government Property:

  • Article 112 pertains to government property and requires a period of 30 years for granting a title by adverse possession.

Article 111 – Limitation Period for State:

  • Article 111 states that the limitation period for the State is 30 years from the date of dispossession for private land, where any public street or road or any part of it has been dispossessed and no suit has been filed for its possession by or on behalf of any local authority.

Main ingredients of adverse possession are as follows:

  • Date of Possession: The person claiming adverse possession should specify the date on which they came into possession of the property.
  • Nature of Possession: It is important to establish the nature of the possession, such as whether it was exclusive, actual, and physical.
  • Knowledge of Possession: The factum of possession should be known to the owner or the other party. However, for the possession to be considered “open,” it doesn’t necessarily have to be brought to the specific knowledge of the owner, unless an ouster of title is claimed.
  • Duration of Possession: The length of time the adverse possession has continued is a crucial factor. The person must show that they have maintained possession for a statutory period, such as 12 years for private land or 30 years for government land.
  • Open and Undisturbed Possession: Adverse possession must be open, meaning it should be without any attempt at concealment. It does not require the owner’s knowledge but should be visible and apparent. The possession must also be undisturbed, indicating a consistent course of conduct and not a sporadic or occasional act of possession.

Why did the SC suggest changes to the law on adverse possession?

The Supreme Court (SC) suggested changes to the law on adverse possession for the following reasons:

Harshness on True Owners:

  • In the case of Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Others, the SC noted that the existing law of adverse possession is harsh for the true owner of the property.
  • It allows a dishonest person who illegally takes possession of the property to benefit from their illegal actions, creating a windfall for them and placing a premium on dishonesty.

Irrational and Disproportionate:

  • The SC described the law of adverse possession as irrational, illogical, and wholly disproportionate.
  • It ousts an owner based on their inaction within the limitation period, regardless of the circumstances or reasons for their inaction.

Need for Fresh Look:

  • The SC emphasized the urgent need for a fresh look at the law on adverse possession and recommended that the government seriously consider making suitable changes to it.

Commission’s Response:

  • The Ministry of Law and Justice referred the matter to the Law Commission in 2008.
  • The 19th Law Commission prepared a consultation paper and questionnaire and received responses.
  • However, the Commission failed to file a final report on the subject, prompting the present Law Commission to reevaluate the matter.

Dissenting Opinion:

  • Two ex officio members of the Law Commission, legislative secretary Reeta Vasistha and law secretary Niten Chandra, filed a dissent note stating that the law on adverse possession promotes false claims.

-Source: Indian Express


December 2023
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