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Adverse Possession

  • 07 Jun 2023
  • 6 min read

For Prelims: Law Commission of India, Adverse possession, Limitation Act, 1963, Supreme Court, Hammurabi Code.

For Mains: Major Provisions of the Limitation Act, 1963, Historical Development and Legal Framework of Adverse Possession.

Why in News?

The 22nd Law Commission's recent report provides a thorough examination of adverse possession and its implications in property law and recommended that no changes are necessary in the existing provisions under the Limitation Act of 1963.

  • The concept of adverse possession stems from the idea that land must not be left vacant but instead, be put to judicious use.

What is Adverse Possession?

  • About:
    • Adverse possession refers to the acquisition of property through hostile, continuous, uninterrupted, and peaceful possession.
    • The concept aims to prevent long-standing doubts over land ownership and to benefit society by allowing someone to make use of idle land left by the owner.
      • It also provides protection to individuals who have regarded the occupant as the rightful owner of the property.
  • Historical Development and Legal Framework:
    • Historical Basis: The concept of "title by adverse possession" dates back to the Hammurabi Code in 2000 BC.
      • Its development continued through statutes of limitation in England, with the Property Limitation Act of 1874 being a significant milestone.
    • Introduction to India: The law of limitation was introduced in India through the "Act XIV of 1859" and underwent significant changes with the enactment of the Limitation Act in 1963.
  • Major Provisions of the Limitation Act, 1963:
    • Burden of Proof: The 1963 Act shifted the burden of proof of adverse possession to the claimant, thereby strengthening the position of the true owner.
    • Acquisition of Ownership: Under the Limitation Act, 1963, 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.
      • To claim adverse possession, the possession must be open, continuous, and adverse to the rights of the true owner for the required statutory period.
  • Main Ingredients of Adverse Possession:
    • The Supreme Court, in the 2004 case of Karnataka Board of Wakf v Government of India, outlined the essential elements for proving adverse possession.
      • Claimants must establish the date of possession, the nature of possession, awareness of possession by the true owner, the continuity of possession, and that the possession was open and undisturbed.
      • In the 1981 ruling in Kshitish Chandra Bose vs. Commissioner of Ranchi, the top court delineated the requirements of openness and continuity.
  • Criticism and Recommendations:
    • Criticism of Current Law: In the 2008 case of Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Others, the Supreme Court criticised adverse possession as being unduly harsh on the true owner and benefiting dishonest trespassers.
      • The court urged the government to reconsider and amend the law, recognizing the necessity for a fresh perspective on adverse possession.
    • Reference to Law Commission: In response to the court's recommendation, the Ministry of Law and Justice referred the matter to the Law Commission in 2008 for examination and a subsequent report.

What are the Arguments Against Adverse Possession?

  • Promotes False Claims: Adverse possession promotes false claims and burdens the judicial system with avoidable litigation.
  • Lack of Consent: Adverse possession allows someone to acquire property without the consent or knowledge of the true owner.
    • This is considered unfair and unethical, as it disregards the owner's rights and denies them the opportunity to make decisions about their own property.
  • Inequitable Outcome: Adverse possession can lead to unjust outcomes, especially when the true owner is unaware of the adverse possessor's occupation.
    • The true owner may suddenly discover that their property has been taken away by someone who had no rightful claim to it, resulting in a loss of property and often emotional distress.

What is Law Commission of India?

  • The Law Commission of India is a non-statutory body constituted by the Government of India from time to time, with definite terms of reference to carry out research in the field of law.
    • It works as an advisory body to the Ministry of Law and Justice.
    • The first Law Commission of independent India was established in 1955 for a three-year term.
  • The Law Commission of India has submitted 277 reports so far on various topics ranging from civil law, criminal law, constitutional law, family law, personal law, environmental law, human rights law, etc.
  • It is currently in its 22nd term and its chairman is Justice Rituraj Awasthi (Former Chief Justice of Karnataka HC)

Source: IE

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