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Adverse Possession

  • June 5, 2023
  • Posted by: OptimizeIAS Team
  • Category: DPN Topics
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Adverse Possession

Subject: Polity

Section: Legislation in news

Context: “There is no justification for introducing any change in the law relating to adverse possession,” the 22nd Law Commission has said in its recent report. While two of its ex-officio members filed a dissent note saying that the law promotes false claims.

Concept:

Adverse Possession

  • The concept of adverse possession stems from the idea that land must not be left vacant but instead, be put to judicious use.
  • Essentially, adverse possession refers to the hostile possession of property, which must be “continuous, uninterrupted, and peaceful.”
  • According to the Law Commission’s report, the rationale behind this comes from considerations that the “title to land should not long be in doubt”, “society will benefit from someone making use of land the owner leaves idle,” and “persons who come to regard the occupant as owner may be protected.”
  • The law does not help those who sleep over their rights. Simply put, “the original title holder who neglected to enforce his rights over the land cannot be permitted to re-enter the land after a long passage of time,”.

Background:

  • The concept originally dates back to 2000 BC, finding its roots in the Hammurabi Code, but the historical basis of “title by adverse possession” is the development of the statutes of limitation on actions for recovery of land in England.The first such statute was the Statute of Westminster, 1275. However, it was the Property Limitation Act, 1874, that set the period of limitation at twelve years from when the cause of action first arose, which laid the groundwork for the limitations model inherited by colonial India.
  • Act XIV of 1859 regulated the limitation of civil suits in British India.
  • After the passage of the Limitation Act in 1963, the law on adverse possession underwent significant changes.

Limitation Act, 1963:

  • It fortified the position of the true owner of the land, as he now had to merely prove his title, while the burden of proof of adverse possession shifted to the person claiming it.
  • Any person in possession of private land for over 12 years or government land for over 30 years can become the owner of that property.
  • Article 65 of Schedule I of the 1963 Act: A person in adverse possession of immovable property acquires title to that property. However, the possession must be open, continuous, and “in defiance of the title of the real owner for twelve years.”
  • The limitation period for the State will be 30 years from the date of dispossession for land belonging to a private person where any public street or road or any part of it has been dispossessed and no suit has been moved for its possession “by or on behalf of any local authority”.

SC Rulings:

  • In the 2004, Karnataka Board of Wakf v Government of India, the apex court held “A person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed.”
  • In 2008, HemajiWaghaji Jat v. BhikhabhaiKhengarbhai Harijan and Others, the court ruled that Article 65 “ousts an owner on the basis of inaction within limitation” and is “irrational, illogical, and wholly disproportionate” and recommended the government “to seriously consider and make suitable changes in the law of adverse possession”.
  • Owing to the importance of the subject, coupled with the fact that the reference had been pending since 2008, the present Law Commission found it “expedient to deliberate afresh over the subject.”
Adverse Possession

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