Adverse Possession in India: Whether any relook required in the present law?

“Protest within 12 years or lose property to squatter: Supreme Court”


The concept of adverse possession is an old concept of law, which is lambasted time and again on the ground that it protects and confers right upon wrongdoers. Adverse Possession is a legal principle, where an initial wrong of a trespasser is converted into a subsequent and eventful right. In other words, when a person abandons his land and some other person starts treating that land as his own and uses it as if it belongs to him for a statutorily prescribed period of time as provided by law, after the given time, if the squatter continues to practice his right over the land, he becomes the legal owner of that land and the registered owner loses all rights over the said property. This doctrine allows a person to acquire title of another’s land without his permission. It is a strange legal concept that condones trespassing as it rewards the “squatters” for conduct that seems unfair, unjust and contrary to long-held principles of private property ownership. This doctrine naturally gives rise to plethora of controversies among the real owners and the unauthorised occupant of the land.

In order to claim adverse possession, following essential conditions needs to be proved:[i]

i. Hostile possession: The possession must be hostile, in the sense that the person must expressly or impliedly deny the possession of title to the true owner and behave as if the he is the true owner and the real owner has no title over it. Such possession must infringe up on the true owner’s rights.

ii. Actual Possession: The possession must be actual throughout the statutorily prescribed period of time. The possessor must show that he physically possesses the land.

iii. Open and notorious possession: An adverse possessor must possess the property openly so that it is obvious for the public to think it belongs to him. If the possession is secret then the possessor will not acquire any legal right.

iv. Continuous Possession: The possession must be continuous and uninterrupted. Any break in the possession between the prescribed period, will extinguish his rights.

v. Exclusive Possession: The possessor must be in sole possession of the property. The possession cannot be shared with the real owner or anybody.

The common law requirements mentioned above have evolved over years and the “Statutorily prescribed period of time” differs from country to country depending on their jurisdictions.

Law Governing Adverse Possession

The law on Adverse Possession is governed by the Limitation Act, 1963, in India. The Article 65 of Schedule 1 prescribes a limitation of 12 years for a suit for possession of immovable property in case of private property[ii] and 30 years in case of government property under Article 112 of Schedule 1.[iii] The limitation starts from the date the possession became adverse and hostile and not from the date of commencement of the right of ownership. The real owner of the property should have actual knowledge of the adverse possession. The legal right of the real owner itself is not defeated, but only the right to claim it through a court of law is extinguished. Article 65 of the Limitation Act, 1963 is for suit relating to possessions based on the title of the property[iv] whereas Article 64 is for suit dealing with possessions and not title.[v] Article 65 as well as Article 64 shall be read with Section 27 which is – ‘Extinguishment of right to property’.[vi] It provides that where a cause of action exists to file a suit for possession and if the suit is not filed within the period of limitation prescribed, then, not only the period of limitation comes to an end, but the right based on title or possession, as the case may be, will be extinguished.


Conflicting View of Supreme Court on Plea on Adverse Possession


The Supreme Court observed in Karnataka Board of Wakt v Government of India[vii] that, “in the eye of the law, an owner would be deemed to be in possession of a property as long there is no intrusion.” Later in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan[viii]the Apex Court criticized the law stating it as irrational, illogical and wholly disproportionate. Further, the Supreme Court in State of Haryana v Mukesh Kumar & Ors [ix], held adverse possession as an ‘archaic’ concept and directed the Ministry of Law to reconsider the law or abolish it for good. The Supreme Court recommended some amendments in the law that would require the petitioner to possess the property for a period of 30 to 50 years, instead of 12 years to ensure that only those claimants which have an honest claim acquire the land, while only the most careless and unprotected owners lose the title. In 2012, considering the Mukesh Kumar judgement, the Law Commission published a public questionnaire inviting recommendations as to what should be done to deal with the present law. However, no suggestions have been made till date which has led to the Section 65 of the Limitation Act to remain as it is. However, in the recent judgement of 2020, Ravinder Kaur Grewal v Manjit Kaur,[x] the Supreme Court took a contrary position to the one adopted in Mukesh Kumar. It was held that once the possessor has perfected his title by adverse possession for 12 years, the real owner loses the right to eject the possessor. The court further held that this plea of adverse possession can be used as a ‘sword’ by the plaintiff or as a ‘shield’ by the defendant to claim title of the property. This judgement sets a bad precedent as it allows people to claim the title of land which they have possessed and acquired illegally, merely because of the inaction of the owner as he does not file a suit against them. However, this judgment given by a three-judge bench has affirmed the position of adverse possession rather than subduing it, which would have to be followed, unless overruled by a larger bench.

Conclusion


The law of adverse possession has changed its stance with every judgment and is thus clearly in a state of judicial flux and requires legislative action to settle the position. With the recent judgment, the doctrine of adverse possession has been reinforced and neglect of property has been reprimanded. Although the object of this doctrine was to encourage efficient utilization of land rather than wasting it, however some dishonest persons used it as a license to grab the title of other persons’ land by the means of illegal windfall. On the other hand, there are people who have taken care of the land for a long period of time with the intention of gaining ownership of that land, which would otherwise become homeless. Taking into consideration, the state of land ownership and the need to support interests of vulnerable and downtrodden communities, the law of adverse possession is a necessary evil that cannot be absolutely abolished. Henceforth, there is a dire need to revamp this archaic law and make it more stringent in order to safeguard the rights of the real owner and abolish bad faith adverse possession.



References - [i] T. Anjanappa & Others v. Somalingappa & another [2006] 7 SCC 570. [ii] Article 65 of schedule 1 of Limitation Act, 1963 [iii] Article 112 of schedule 1 of the Limitation Act, 1963 [iv] Article 65 of the Limitation Act, 1963 [v] Article 64 of the Limitation Act, 1963 [vi] Section 27 of the Limitation Act, 1963 [vii] Karnataka Board of Wakf v Govt. of India [2004] 10 SCC 779. [viii] Hemaji Waghaji Jat v Bhikhabhai Khengarbhai Harijan [2009] 16 SCC 517. [ix] State of Haryana v Mukesh Kumar [2011] 10 SCC 404. [x] Ravinder Kaur Grewal v Manjit Kaur [2020] 148 RD 208.


Author - Tanisha Papdiwal, Penultimate Year Law Student at O.P. Jindal Global University

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