Law Commission recommends not to change Law on Adverse Possession

The Law Commission of India, headed by Justice Ritu Raj Awasthi, responding in its Report No. 280 on the subject “The Law on Adverse Possession” said that there is no justification for introducing any change in the law relating to adverse possession. The Ex-officio member of Law Commission dissented and said that the law of adverse possession serves no useful purpose considering the enactment of land laws in all the States for the welfare of the poor and the possibility of fraudulent claim of adverse possession as is established by large number of cases where courts have declined the claim of adverse possession.

193rd Law Commission Report explained Adverse Possession:

In the discussion of the subject matter the Commission stated that as per Article 65 of the Schedule to the Limitation Act, 1963, a person in adverse possession of immovable property acquires title to the property. Such possession must be open and continuous and in defiance of the title of the real owner for 12 years so that the person can prescribe title by adverse possession. As far as the Government property is concerned, Article 112 of the Schedule to the Limitation Act, 1963 prescribes a requirement of 30 years for the same. The Report further stated that the principles of law evolved by the Courts also permit acquisition of limited rights by adverse possession.

Background:

The matter of “adverse possession” came up for consideration to the Commission pursuant to the Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, (2009) 16 SCC 517 whereby it was held that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.

The Supreme Court in this case opined that there is an urgent need for a fresh look regarding the law of adverse possession and disapproved of the theory of a trespasser being able to perfect title by adverse possession.

This issue was first considered by the 19th Law Commission and a Consultation Paper-cum-Questionnaire was submitted with the opinion that,

“The commission is of the view, that existence of limitation period of 12 years for taking action for recovery of land is a sufficient protection accorded to the real owner. The doctrine of adverse possession should be retained to enable a person who has acquired the possession to title bonafidely to keep his possession. Such a limitation gives a legitimate right to the real owner to reclaim his possession. It is a fair balance created by the statute. Moreover, proving ownership on the basis of adverse possession is not easy.”

Recommendations of Law Commission:

1. No reason or justification to enlarge the period of limitation.

2. Expedient to delete the words “including the Government of the State of Jammu and Kashmir” from Article 112 as the words “except the State of Jammu and Kashmir” from Section 1 (2) has been omitted by the Jammu and Kashmir Reorganisation Act, 2019.

3. In respect to notion of morality- the law on adverse possession in its current form ensures that there is always an owner or claimant to contentious land. This is precisely the reason why the law validates the claim of adverse possession made by the squatter only when the owner can be shown to have lost effective authority. This is also the rationale behind the owner being able to defeat the adverse possessor’s claims by showing that he continues to be in charge of the property.

4. Issue of Compensation to be paid to landowners- the commission said that it is not advisable to make any provision for compensating the owner by the adverse possessor. After coming into wrongful possession, the adverse possessor may be interested in retaining the land even after paying compensation to the owner. The process of fixing compensation may provide an opportunity to him to question the quantum of compensation and to protract the litigation to the prejudice of the owner who lost possession and who wants to recover possession of his land.

Dissent:

1. Other Ministries and Departments said that the Commission has not consulted the relevant Ministries of the Government of India and States from where useful input could have been received. ln the absence of the inputs of the Ministries of Government of India and the State Governments the benefit of broad-based deliberation has been avoidably curtailed.

2. Member said that the adverse possession is prone to misuse as to claim that adverse possession protects the rights of the poor ignores the abuse of the law by land mafias, builders and powerful interest groups who are not disqualified to claim adverse possession under the present law.

3. Ground of Morality: The morality ground propounded was said to be not only contrary but ridiculous as the abolition of the law will neither hinder anybody’s right nor cause negligence of land resources as the Commission alleges.

4. It was also said that the State has laws for providing land to the landless in a manner which is authorized by law.

Relevant Statutory Provisions of the Limitation Act, 1963, Schedule:

Chairperson– Hon’ble Justice Ritu Raj Awasthi

Full-time Members– Hon’ble Justice K.T. Sankaran

Prof. (Dr.) Anand Paliwal

Prof. D.P. Verma

Member Secretary– Shri K. Biswal

Ex-officio Members– Dr. Niten Chandra, Secretary, Department of Legal Affairs

Dr. Reeta Vasishta, Secretary, Legislative Department

Part-time Members– ShriM. Karunanithi

Prof. (Dr.) Raka Arya

Law Officers– Smt. Varsha Chandra : Joint Secretary &Law Officer

Shri Atul Kumar Gupta: Deputy Law Officer

Legal Consultants– Shri Rishi Mishra

Shri Gaurav Yadav

Shri Shubhang Chaturvedi

Shri Davinder Singh