Law Commission Says No Need To Reconsider Law On Adverse Possession; Disagrees With Supreme Court

The Law Commission of India has recommended against enlarging the period of limitation provided under Articles 64, 65, 111, or 112 of the Limitation Act, 1963, which encapsulates the law on adverse possession. “There is no justification for introducing any change in the law relating to adverse possession,” the commission – headed by retired Karnataka High Court judge Ritu Raj Awasthi – has stated in its 280th report on ‘The Law on Adverse Possession’. This development comes even as the Supreme Court, in two separate judgements, deprecated the concept of adverse possession and emphasised the need for the Parliament to have a fresh look at the legal provisions. In its report, the commission has recommended only a minor change to the language of Article 112 of the act in light of the abrogation of Article 370 of the Constitution that granted special status to the erstwhile state of Jammu and Kashmir. The jurisdictional extent of the act – contained in Section 1 – did not include the state of Jammu and Kashmir before 2019. After the Jammu and Kashmir Reorganisation Act, 2019, the words “except the State of Jammu and Kashmir” were omitted from the section. Therefore, the commission has noted, it would be expedient to delete the words “including the Governor of the State of Jammu and Kashmir” from Article 112. Meaning of adverse possession and legal position in India Adverse possession is a legal concept that allows a person who has unlawfully occupied someone else’s land for a certain period of time to claim legal ownership of that land. In India, adverse possession has been a part of the legal framework for a long time and is rooted in the idea that land must not be left vacant and instead be put to judicious use. To claim adverse possession, the occupier must prove that they have been in continuous, uninterrupted possession of the land for at least 12 years, and that their possession was open, notorious, and hostile to the true owner. The law on adverse possession is contained in the Limitation Act, 1963. Article 65, Schedule I prescribes a limitation of l2 years for a suit for possession of immovable property or any interest therein based on title. Article 65 is an independent article applicable to all suits for possession of immovable property based on title, i.e., proprietary title as distinct from possessory title. Article 64 governs suits for possession based on possessory right. l2 years from the date of dispossession is the starting point of limitation under Article 64. Article 65 as well as Article 64 must be read with Section 27 which contains an exception to the well-known rule that limitation bars only the remedy but does not extinguish the title. Section 27 – entitled ‘Extinguishment of right to property’ – lays down that where the cause of action exists to file a suit for possession and the suit is not filed within the period of limitation prescribed, then, not only does the period of limitation come to an end, but the right based on title or possession, as the case may be, will also be extinguished. In other words, by virtue of this section, a person who had a right to possession, but has allowed their right to be extinguished by their inaction, cannot recover the property from the person in adverse possession after the passage of the period prescribed under the Limitation Act; and as a necessary corollary, the person in adverse possession is enabled to hold on to his possession as against the owner not in possession. In contrast to the limitation period prescribed with respect to land belonging to a private person, where any public street or road – or any part thereof – which has been encroached and no suit has been moved by or on behalf of any local authority for possession of the said street or road, the State would abdicate its right to evict the occupier only after 30 years, as prescribed by Article 111. As far as any property belonging to the state or central governments is concerned, the period of limitation for a suit (except a suit before the Supreme Court) is 30 years and the starting point of limitation is the same as in the case of a suit by private person vide Article 112, Schedule I of the Limitation Act. Supreme Court’s trenchant criticism of adverse possession in two recent judgements The law permitting adverse possession has been deprecated by the Supreme Court of India in two recent decisions, namely, Hemaji Waghaji v. Bhikhabhai Khengarbhai and State of Haryana v. Mukesh Kumar. In both these judgements, division benches headed by retired judge Dalveer Bhandari emphasised the need to have a fresh look at the legal provisions. The top court has taken an unkind view to the concept of adverse possession, describing it in Hemaji Waghaji as irrational, illogical, and wholly disproportionate and harsh for the true owner, besides being a means for unjust enrichment for a dishonest person who has...

Law Commission Says No Need To Reconsider Law On Adverse Possession; Disagrees With Supreme Court

Awstika Das

Notably, Law Ministry representatives dissented from the conclusions of the Law Commission regarding adverse possession.

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