The Law Commission’s recent paper on adverse possession law provides an overview of adverse possession, its historical origins, and contemporary regulations under the Limitation Act of 1963.
What exactly is Adverse Possession?
- Adverse possession is defined as hostile possession of property that must be continuous, unbroken, and peaceful.
- The concept strives to put vacant land to good use and is founded on the principle that property ownership should be clear.
Background Information on Adverse Possession
- Adverse possession has historical roots in the Hammurabi Code and evolved in England through statutes of limitation.
- The “Act XIV of 1859,” which regulated civil cases, was the first attempt to impose the law of limitation in India.
- The Limitation Act of 1963 changed the law on adverse possession significantly.
Limitation Act of 1963 provisions
- The burden of proof for adverse possession shifted to the claimant in the 1963 Act, who must demonstrate continuous possession for a specified period.
- Articles 64, 65, 111, and 112 of the 1963 Act govern proceedings for adverse possession of immovable property.
Adverse Possession Ingredients
- The Supreme Court has identified the basic characteristics of adverse possession, which include the kind and duration of possession, awareness on the side of the other party, openness, and continuity.
Recommendations of the Supreme Court for Legal Changes
- In the case of Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Others (2008), the Supreme Court criticised the doctrine of adverse possession as irrational and favouring dishonesty.
- The Supreme Court suggested reexamining the law and urging the government to make necessary revisions.
Inquiry to the Law Commission
- In 2008, the Ministry of statute and Justice referred the case to the Law Commission, seeking that the statute on adverse possession be reviewed.
- The nineteenth Law Commission issued a consultation paper but did not submit a final report.
The most recent Law Commission Report
- In its 280th report, the 22nd Law Commission stated that there is no rationale for amending the law on adverse possession.
- Two ex officio Commission members wrote a dissenting note, claiming that the law encourages false claims and should be repealed.
Disagreements and Criticisms
- In an adverse possession case, the opposing note questioned the contradicting necessity of peaceful and aggressive possession.
- It said that the statute adds unneeded litigation to the courts and encourages bogus claims.
- The minority opinion argued that the law of adverse possession should be repealed since it serves no purpose and impedes judicial scrutiny.
Source: https://indianexpress.com/article/explained/explained-law/adverse-possession-law-commission-8645815/#:~:text=Essentially%2C%20adverse%20possession%20refers%20to%20the%20hostile%20possession%20of%20property.&text=%E2%80%9CThere%20is%20no%20justification%20for,said%20in%20its%20recent%20report.