This article has been written by Ms. Aditi Mishra, a 4th Year B.Com. LLB (Hons.) student from Institute of Law, Nirma University.
Introduction
Originated in the year 2000 BC, adverse possession is the long-term, uninterrupted ownership of land or property by a person who is neither the owner nor has authorization from the owner. Despite having committed a wrong, the individual de facto acquires legal ownership of the land or property and benefits from its rights. During a period of 12 years, the individual will remain in ownership of the land. The statute of limitations gives the owner of private land a 12-year window and 30-year window within which to renounce a claim of unauthorized possession. Although the owner retains ownership rights during the limitation period, such rights expire after the restriction has passed. The idea may seem anarchic to the property owner, but when considered in the context of the law, it is correct and legitimate.
Consequently, it is necessary to thoroughly analyse the legal provisions, judicial precedents, and interpretation of the same before declaring that the legislation is unnecessary and unreasonable. This article will discuss the idea of adverse possession, its legal implications, and how to interpret existing case law.
Legislation For Adverse Possession In India
A significant piece of legislation that elaborates on adverse possession is the Limitation Act of 1963. It should be noted that the said provision only prohibits the person filing the suit’s remedy and not his legal rights, as stated in Section 3 of the Limitation Act, 1963: “no cognizance can be taken by the Court if the suit is barred by limitation, whether the defendant has raised a defense or not.” Under Section 27 of the Limitation Act of 1963, it is stated that “if a person does not pursue any action for recovery of possession during the term of limitation, his rights are extinguished,” yet there is an exception to this rule.
The limitation term for an action for possession of moveable property or any interest therein based on title is 12 years, according to Article 65, Schedule I of the Limitation Act of 1963. A comparable litigation would instead have a 30-year statute of limitations under Article 112 of the Limitation Act of 1963, which states that “any suit by the state or central government” would have a 30-year period of limitations. The “time” since the “possession of the defendant became adverse to the plaintiff” is used to determine the statute of limitations.
The legal right of adverse possession in Indian law is derived from Sections 3 and 27, as well as the aforementioned Articles, as may be seen by reading them. Not only does the right to bring a lawsuit expire if it is not filed within the limitation period set out when a cause of action exists to file a suit of possession, but also the right to that property.
Adverse Possession vs. Right To Property
The right to property was a basic right under India’s Constitution prior to the forty-fourth amendment. But, after that, it was recognized as a constitutional right by Article 300A of the COI. No one “shall be stripped of his property except by the authority of law,” according to Article 300A. The State is not permitted to take away a citizen’s property unless it is done so in compliance with the legal process. In other words, removing someone from their private property without due process is against their constitutional and human rights under Article 300A of the Constitution.
A homeowner will never voluntarily relinquish control of their home to another party. There is a legislation that favours immigrants over homeowners, though. This property right is partially undermined by the idea of adverse possession. The idea is founded on the legal dictum “vigilantibus non-dormientibus subvenit lex,” which states that only citizens who are actively participating in society are favored by the law, not those who are passive or unconcerned with their rights.
A homeowner will never voluntarily relinquish control of their home to another party. There is a legislation that favors immigrants over homeowners, though. This property right is partially undermined by the idea of adverse possession. The idea is founded on the legal dictum “vigilantibus non-dormientibus subvenit lex,” which states that only citizens who are actively participating in society are favored by the law, not those who are passive or unconcerned with their rights.
Judicial Precedents And Current Position Of Adverse Possession In India
- Hemji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan & Ors. (2009)
According to the Supreme Court, the law of adverse possession, which evicts a property owner for failing to take action within a certain amount of time, is irrational, illogical, and wholly disproportionate. The existing legal system is extremely severe on the real owner of the property while being a windfall for a dishonest individual who has unlawfully taken ownership of it. Someone who trespasses on another person’s property shouldn’t receive legal support. In essence, this implies that the law supports the wrongdoing of a trespasser or someone who has unjustly taken possession of the property of the rightful owner.
- Gurudwara Sahib vs. Gram Panchayat Village Sirthala & Anr. (2013)
The plaintiff in Gurudwara Sahib sought, among other things, a finding that he had acquired title to the subject property by adverse occupation. Also, the plaintiff asked for an injunction against the defendant to stop him from being evicted from the property. Although the trial court determined that the plaintiff was in adverse possession of the subject property and granted injunctive relief against the defendant’s dispossessed, the court held that the plaintiff was not permitted to request any declaration of ownership on the basis of adverse possession because the plea could “only be used as a shield and not as a sword.” This evaluation was accepted by the High Court.
Even if the plaintiff is deemed to be in adverse possession, it cannot seek a declaration to the degree that such adverse possession has developed into ownership, the Supreme Court reaffirmed the previous ruling on appeal. In doing so, the Court upheld the trial court’s and the High Court’s reliance on the ruling in Gurudwara Sahib Sannauli v. State of Punjab rendered by the Punjab & Haryana High Court.
- Ravinder Kaur Grewal vs. Manjit Kaur (2019)
With relation to the 11 kanals and 17 marlas of land, which included the Khasra nos. 935/1 and 935/2 as well as all other assets specifically listed in the schedule, one Harbans Singh filed a case against his own brothers. In this case, the plaintiff filed a petition asserting his exclusive ownership of his father’s property and asking the court to declare his brothers Sohan Singh and Mohan Singh to be the first and second defendants in the lawsuit.
The complainant claimed that a family member called a meeting to discuss a resolution, and that under the fair leadership of the honorable family member, the settlement was acknowledged and accepted, leading to a complete settlement and all development on the aforementioned land being decided in his favor. The land in question contained 16 commercial establishments, a Samadhi of the complainant’s wife, Gurcharan Kaur, whose name was listed in the action filed, and other structures. The plaintiff claimed that the building on the property was his design, and that he built it as evidence of his ownership of the land.
An argument broke out inside the family in 1970. In addition to asserting the arrangement and ownership of the suit property, the plaintiff also claims that because the plaintiff owns the property mentioned in the complaint, ownership of the entire suit property has been transferred to him for a period of 12 years.
The family memorandum that has been put on paper, recognized, and accepted is binding on all parties, regardless of what the issue pertains to or whether it has anything to do with legal standing. It is nevertheless relevant in the case at hand as the family memorandum generated therein serves as an estoppel to any defendants whose petition conflicts with the agreement. The court decides that there is no justification for overturning the appeal court’s judgment.
Conclusion
Over time, the adverse possession theory has undergone a number of modifications. Nonetheless, it can still provide the land possessor an unfair advantage over the owner even today. As it contradicts equality, this outdated law needs to be amended. According to the law of adverse possession, there are times when the rightful owners of real estate are evicted due to negligence, poverty, or other factors and are unable to file a lawsuit to obtain the legal remedies.
This strategy, according to the court, is incredibly unjust and irrational in the present since the person who ought to be punished as a trespasser is given permission to hold that property. There may be many causes for a person’s inaction that do not fall under the purview of the exceptions that must be taken into account. Moreover, the court’s conclusion that adverse possession can result even if the possession is obvious to the public but the owner is unaware of it is unjust and disregards the owner’s rights.
Nonetheless, there are some situations where having an unfavourable possession might be advantageous. The goal of this strategy is to benefit society by making use of vacant property that has been abandoned by its owner. Also, the law rewards active persons over inactive ones. The owners of land in adverse possession should not be given any remedy under present law since they fail to exercise their rights and are ignorant that their property has been unlawfully occupied for up to 12 years.
Another reason is that even if someone illegally holds onto something for a long time without receiving any notice from the owner, they develop a certain level of confidence that they won’t be prohibited from using it after a given length of time. People have expectations, and you shouldn’t let them down.
It is clear from both its benefits and drawbacks that the current laws need to be changed in a way that is advantageous to both the owner and the possessor. As was already said, it is necessary to investigate a number of uncertainties regarding the owner’s complete understanding. So, it can only be argued that the legal rules controlling adverse possession are successful when all of these gaps are closed in order to encourage legal ownership of the land and also preserve the possessor’s rights once the limitation time has passed.
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