What is adverse possession?
In a recent report the 22nd Law Commission has mentioned that, there is no justification for introducing any change in the law relating to ‘adverse possession’.
- The concept of adverse possession stems from the idea that land must not be left vacant but instead, be put to judicious use.
- Essentially, adverse possession refers to the hostile possession of property, which must be “continuous, uninterrupted, and peaceful.”
- According to the Law Commission’s report, the rationale behind this comes from considerations that the;
- Title to land should not long be in doubt,
- Society will benefit from someone making use of land the owner leaves idle, and
- Persons who come to regard the occupant as owner may be protected.
- The report also mentions that the original title holder who neglected to enforce his rights over the land cannot be permitted to re-enter the land after a long passage of time.
- A two-judge SC bench, in its 2008 ruling in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Others, while dealing with Article 65 of the Schedule of the Limitation Act, 1963, observed that the law of adverse possession “ousts an owner on the basis of inaction within limitation” and 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 has illegally taken possession of the property.
- On December 19, 2008, a reference was made to the Law Commission by the Ministry of Law and Justice, requesting it to examine the matter and furnish its report on the adverse possession.
- The land is an immovable property where the value of a such property depends on its surroundings and the population; a growing population where its demand increases and supply remains limited makes it a unique asset, and therefore it is mandatory that the ownership of such land is clearly defined and is governed by Land ownership laws in India.
- Land ownership is determined by considering who has access to a land title; such determination helps protect the rights of the titleholder and impacts livelihoods.
- However, in India, land titles are unclear, and hence various land ownership laws in India are framed.
- Under land ownership laws in India, the rights of the title holder are to be protected so that no other person can claim the property.
- Therefore, land ownership laws in India are determined via various land documents such as property tax documents, registered sale deeds, and government survey records.
- As per the Constitution of India, “Land” was the subject of the “State” list.
- Till 1977 the property right was regarded as a fundamental right; however, after the 44th Constitution amendment, the property right was no longer considered a fundamental right and became a constitutional right which is to be protected under the authority of Land ownership laws in India.
- Today the right to land in India is protected and regulated by State laws.