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ADVERSE POSSESSION: A DRACONIAN COLONIAL RESIDUE?

INTRODUCTION

Adverse Possession refers to hostile possession[1] of property by any trespasser/squatter wherein he/she may perfect a title over the said property if this possession continues for 12 years not litigated by the true owner.[2] Article 65 (of Schedule) of the Limitation Act[3] governs the law of adverse possession. The jurisprudence behind the law is to promote maximum utilization of the immovable property and discourage continued inaction by the actual owner towards their property for a long time.[4]

BARRIERS & BURDEN OF PROOF

In cases of adverse possession, the plaintiff claiming such possession has the onus on him/her to prove that he/she has been an adverse possessor ( not a permissive possessor by any means) of the suit land in a visible, hostile and continuous manner.[5] Not only the act, but also the law requires the existence of animus possidendi i.e. an intent to possess the property in dispute. The burden to prove possession becomes all the more difficult if there are no certified documents available for proving the same. The continuous nature of the possession must also be a settled one, for a reasonably sufficient period and not any trespassing act possession.[6] Any disturbance or interruption in between may prove to invalidate the result of the suit subject to Article 64.[7] Also, the claim of title over the suit property through previous possession can only be raised once the proper title of the original owner has been established through relevant evidence.[8] Regarding the hostile intention aspect, one of the apex court judgements has interpreted that it is required to be hostile since the true owner gets a mere knowledge of it.[9] The juxtaposing requirements of having a hostile intent as well as peacefully using the property is quite challenging to prove, thus in the majority of the cases the courts have always dismissed the plea of adverse possession on grounds of lack of evidence to prove these requirements. Yet, it must also be noted that several litigations are taken up daily on such law which is quite difficult for the courts to decide with varying precedents.

THE CURRENT ISSUE

The law on adverse possession has been in debate for years now. Many regard it as an irrational law in existence since the primal Hammurabi code[10] which is contrary to natural ownership rights. Thus, it is also questionable to his/her right to property[11] that stems from being in the position of the true title holder. On the issue of whether a good title is created in favour of the trespasser/stranger, there is a catena of precedence tilted in both directions. In some notable judgements, the apex court has unravelled the intricacies of the law on adverse possession and has urged the law ministry to reconsider the application of this law in modern legal set-up.[12]

The absurdity of juxtaposing requirements of open & peaceful yet hostile possession of the squatter[13], the harshness of the law on the real owner and subsequent unreasonable windfall gains to the dishonest squatter,[14] etc. are some of the issues associated while deciding disputes on adverse possession. The court has also emphasized the direct contradiction to the right to property which far encompasses far beyond being a mere constitutional right and entails serious attention.[15] The law commission and the members of the law ministry were divided when the commission released its 280th report. The former supported the validity of the law, while the latter in its latest dissent report pointed out flaws like lack of distinction between adverse possession by good faith and by bad faith and that both are treated equally under the Indian law[16] etc.

IN FOREIGN JURISDICTIONS

Although not much of a difference is found between the laws on adverse possession among the countries across the world, especially the European countries have a lot of similarities in the technicalities and justifications they have adopted for this over the years. In France for example, the period for an adverse possessor to have to wait to claim the title is over 30 years which is significantly higher than what is in India and which is favourable to the real owner. Also, this period may be reduced by 10/20 years depending upon the intent of that possessor (whether he has acted in good faith or bad faith). Also, this title will treat that possessor as the actual owner since the start of hostile possession under that title having a retroactive effect under French law. In Spain too, this period is over 30 years although they have that law effective for both movable and immovable property. In New Zealand the law has the provision to take into consideration the registration aspect of the property and to state the obvious, generally, the law is lenient for the registered properties.

SUGGESTIONS & CONCLUSION

The recent precedents which supported a relooking of the law were mostly presided over by smaller benches and so were not completely binding on earlier judgements that take a stance to maintain the status quo. The primary contention of the supporter of this law is that it is a more fruitful way to address the major issues of the weaker sections of the societies by providing them land and ultimately shelter. But there exists no second thought that there is a plethora of government schemes to provide shelter to the homeless marginalized communities. This complicated legislation only adds up to the already overburdened courts. Moreover, the analogy is also questionable because the cost of owning a piece of land is increasing by huge margins every single day both in the countryside and urban areas. In the most populous country, no wonder there is a huge shortage of residential property and many people buy property not for living but as an asset for investing their hard-earned money in. Awarding property title to even ill-minded goons is possible under the color of the current legal framework regarding adverse possession and there is a fair chance of the purpose of the justice system being defeated. Thus, proper scrutinization and amendments should be sought by the state.

Author(s) Name: Prateek Mishra (KIIT School of Law, Bhubaneswar)

Reference(s):

 [1] Vidya Devi (Dead) v Prem Prakash and Ors [1995] Supp 1 SCR 316

[2] Limitation Act 1963 Article 65 of Schedule 1

[3] ibid

[4] Government of India, Law Commission of India, The Law on Adverse Possession, Report No. 280 May, 2023

[5] PT Munichikkanna Reddy v Revamma AIR 2007 SC 1753

[6] Poona Ram v Moti Ram [2019] 1 SCR 671

[7] Limitation Act 1963 Article 64 of Schedule 1

[8] ibid

[9] T Anjanappa v Somalingappa (2006) 7 SCC 570

[10] The Code of Hammurabi Translated By L. W. King

[11] The Constitution of India 1950 Article 300 A

[12] Government of India, Law Commission of India, The Law On Adverse Possession, Dissent Note, Report No. 280 May, 2023

[13] Ram Nagina Rai v Deo Kumar Rai (Deceased) & Anr (2019) 13 SCC 324

[14] Hemaji Waghaji Jat v Bhikhabhai Khengarbhai Harijan & Ors AIR 2009 SC 103

[15] State of Haryana v Mukesh Kumar & Ors (2011) 10 SCC 404

[16] Dissent Report (n 7)