ADVERSE POSSESSION

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Context: The Law Commission of India has recently submitted its 22nd report on the topic of adverse possession, the report has strongly recommended that the law relating to adverse possession should not be changed or abolished, as it serves a useful social purpose and protects the rights of the poor and marginalized sections of society.

Details

• The Law Commission of India has recently submitted its 22nd report on the topic of adverse possession, which is a legal doctrine that allows a person to acquire ownership of a property by occupying it for a certain period without the consent of the original owner.
• The report has strongly recommended that the law relating to adverse possession should not be changed or abolished, as it serves a useful social purpose and protects the rights of the poor and marginalized sections of society.

Highlights of the Law Commission report

• The Law Commission stated in its 280th report that there is no justification to extend the statute of limitations.
• The report has argued that adverse possession is not a mode of acquiring title by force or fraud, but rather a recognition of the factual situation of possession and the legal consequences that flow from it.
• The report has highlighted the historical and constitutional aspects of adverse possession, and how it is in consonance with the principles of justice, equity and good conscience.
• The report has further stated that adverse possession is not a violation of the right to property under Article 300A of the Constitution, as it does not amount to deprivation or expropriation by the state, but rather a transfer of title by operation of law.
• The report has pointed out that adverse possession is not contrary to the human rights obligations of India under various international treaties and conventions.

The report has concluded that there is no justification for introducing any change in the law relating to adverse possession, as it would create chaos and confusion in the land records and lead to litigation and disputes. The report has suggested that instead of changing the law, the government should focus on improving the administration and management of land records and ensuring that the rights and interests of all parties are duly protected.

Adverse possession

• Adverse possession is a legal principle that allows a person who occupies another person's land without their permission to acquire legal ownership of that land after a certain period. This can happen intentionally or unintentionally, with or without the knowledge of the true owner. Adverse possession is also known as squatter's rights or homesteading in some contexts.
• It is a legal doctrine that allows a person to acquire ownership rights over a property by occupying it for a continuous and uninterrupted period of 12 years, without the consent of the original owner. This doctrine was introduced in India by the British rulers and is governed by the Limitation Act of 1963.

Meaning of adverse possession

• Adverse possession means acquiring property through unsolicited means. However, it is an accepted method and common in India.
• According to the law of adverse possession, if a person continues to be in possession of a property for 12 years, they are granted ownership rights to the property.
• The rationale behind this doctrine is that land must not be left vacant but instead, be put to judicious use.
• It aims to prevent disputes over land titles by rewarding those who use and maintain the land over those who neglect and abandon it.

To claim adverse possession, a person must prove the following elements:

• The possession must be actual, visible, exclusive and hostile.
• The possession must be continuous and uninterrupted for 12 years.
• The possession must be with an intention to oust the original owner.
• The original owner must be aware of the adverse possession and must have acquiesced to it.

Challenges of adverse possession

• The doctrine of adverse possession has been criticized for being unjust, archaic and against public policy.
• It has been argued that it violates the right to property, which is a constitutional and human right.
• It also encourages encroachment, squatting and land grabbing by unscrupulous elements.
• It deprives the original owners of their legitimate rights and interests over their property.
• It is often misused and abused by false claimants who forge documents, fabricate evidence and collude with officials to establish their possession.
• There have been many instances where tenants, licensees, co-owners, trustees and even government officials have claimed adverse possession over properties that they were legally bound to protect or return.

The doctrine of adverse possession needs to be reformed and regulated in India to prevent its misuse and abuse. Some of the possible measures that can be taken are:

• Increasing the period of limitation from 12 years to 30 years or more.
• Imposing a statutory duty on adverse possession to notify the original owners of their claim and pay them compensation or rent.
• Exempting certain categories of properties from adverse possession, such as public lands, religious places, ancestral properties, etc.
• Creating a central registry of properties and their owners and updating it regularly.
• Strengthening the enforcement of property laws and providing speedy and effective remedies to property disputes.

Some of the examples and cases of adverse possession in India are:

• In 2018, the Supreme Court held that a person who inherits a property cannot claim adverse possession over it as he does not have a hostile animus against the original owner.
• In 2019, the Supreme Court ruled that a government official cannot claim adverse possession over a government property as he is in lawful possession of it as per his official duty.
• In 2020, the Delhi High Court dismissed an adverse possession claim by a tenant who had occupied a shop for more than 12 years as he had paid rent to the landlord till 2010.
• In 2021, the Madras High Court upheld an adverse possession claim by a woman who had occupied a house for more than 12 years after her husband's death as she had made improvements and paid taxes on it.

Conclusion

• Adverse possession is a controversial and complex issue that affects millions of people in India. It involves a conflict between two competing principles: the security of property rights and the prevention of stale claims. While some argue that adverse possession serves a social purpose by settling disputes and ensuring the productive use of land, others contend that it violates human rights and encourages land grabbing. The law of adverse possession needs to be reformed to balance these interests and protect the rights of both the owners and the occupiers.

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