Ownership of
an immovable property is one of the dear aspects of life as it fills a person with
confidence and power. Generally a property is acquired either by succession
under personal law or by self purchase. In both the cases there is an inherent
right to hold the property which law gives to a person. Adverse
possession is a different dimension of law where a person even though in absence
of this inherent right becomes the owner of property. It goes
against the general spirit of equity, justice and good conscience where a
person not having a rightful title, still is made the de-facto owner of
property.
Simply speaking concept of
adverse possession contemplates a hostile possession i.e. a possession which is
expressly or impliedly in negation of the title of true owner. It is based upon
famous latin maxim, Vigilantibus non dormentibus jura subveniunt
meaning law aids the vigilante and not the one who sleeps over his rights.
Under Indian jurisprudence,
law of adverse possession finds place under The Limitation Act 1963 (hereinafter
the Act). Article 64 and 65 read together with Section 27 of the Act provides
that suit for possession of immovable property based on previous possession or
title can be filed within 12 years. Under Article 64, suit based on previous
possession can be filed within 12 years from date of dispossession and under
Article 65, it can be filed within 12 years from the day when possession of
defendant becomes adverse to the plantiff.
Section 27 of the Act is an
exception to well accepted rule that limitation bars only the remedy and does
not extinguish the title. In context of adverse possession it means that since
a person who was in possession had himself allowed the right to be extinguished
by his inaction, he cannot recover the property from the person in adverse
possession and as a necessary corollary thereto the person in adverse
possession is enabled to hold on his possession as against the owner not in
possession. In Annakili v. A.Vedanayagam 2008 SC, Apex court
summed up the following essentials to claim the benefits of adverse possession.
1.
A
person in possession of property for more than 12 years
2.
His
possession was to exclusion of all the other persons.
3.
The
said possession was open and hostile to true owner.
4.
Possessor
must have animus possidendi to hold land against the title of true owner.
Scope and Relevancy of Law:
Scope of this law is
limited by the fact that claim of ownership by adverse possession can only be
made as a defense. Apex court in Gurdwar Sahib v. Gram Panchayat Village
Sirthala 2014 SC clearly held that ‘even if plantiff is found to be in
adverse possession, it cannot seek a declaration to effect that such possession
has matured into ownership. It is only when suit is filed against the defendant;
it can be used only as a shield/defense. Thus in essence plea of adverse possession
is only a defense available to defendant.
Adverse possession is
against the cannons of natural justice. A person who in reality does not have
any innate right to hold property is made its owner just because of long
possession. In State of Haryana v. Mukesh Singh 2011 SC, Apex
court reiterated the words of a foreign court judgment that,
“the law
of adverse possession is irrational, illogical and wholly disproportionate and
extremely harsh for true owner and windfall for dishonest person who had
illegally taken possession of property.”
Law ought not
to benefit a person who in clandestine manner has taken possession of property
in contravention of law. Apex court also recommended the need to revisit the
law. The observations by highest court of law is perhaps the realization of immortal words of Roscoe Pound as appearing in his celebrated treatise, The Ideal Element of Law that, "the law must be stable and yet it cannot stand still. Hence all thinking about the law has struggled to reconcile the conflicting demands of the need of stability and the need of change."
Harihar Gupta
LL.M.
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