The Hindu : New Delhi News : Supreme Court recommends change in law on adverse possession

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Supreme Court recommends change in law on adverse possession

J. Venkatesan

“It is extremely harsh for the true owner and a windfall for a dishonest person”

NEW DELHI: The Supreme Court has recommended to the Centre to seriously consider and suitably change the law of adverse possession which gives the right to the occupier of land by force or otherwise to claim title and ownership of the property.

A Bench of Justice Dalveer Bhandari and Justice H. S. Bedi said: “We deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner.”

Writing the judgment, Justice Bhandari said: “The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.”

Premium on dishonesty

“We fail to comprehend,” the Bench added, “why the law should place a premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose its possession only because of his inaction in taking back the possession within limitation.”

In the instant case, appellant Hemaji Waghaji Jat was alleged to have forcibly taken possession of vast acres of lands in Yuvarpura village of Deesa taluk in Gujarat in 1960 from the respondents and he was in continuous possession of the same till 1986.

Under the law of limitation, a person cannot bring an action to recover any land after expiry of 12 years of adverse possession by another. Thus he became owner of the suit property by adverse possession.

However, he claimed that he was the true owner of the property and filed a suit for a declaration to that effect. A trial passed a decree in his favour.

The respondents, Bhikhabhai Khengarbhar Harijan and others, preferred an appeal against this decree and the District Judge of Palanpur allowed the appeal holding that Mr. Hemaji had failed to prove that he bought the land in question.

The Gujarat High Court confirmed the District Judge’s order. The present appeal by Mr. Hemaji to the Supreme Court is directed against this judgment.

Dismissing the appeal, the Bench, quoting an earlier decision, said the effect of the law of limitation would seem draconian to the owner and a windfall for the squatter. “Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment,” it said.

But now even right to property was considered very much a part of human rights and adverse possession must be considered from this perspective, the Bench said.

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