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

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 illegally taken possession of the property. In Mukesh Kumar, the top court opined that the Parliament ought to seriously consider at least abolishing ‘bad faith’ adverse possession, i.e., adverse possession achieved through intentional trespassing.

No Amendment Necessary to Limitation Act: Law Commission

However, the Law Commission has taken a markedly different stand vis-à-vis the Supreme Court by advocating for the extant law on adverse possession to be preserved as they currently exist on the statute book. With respect to enlarging the period of limitation for private owners to file a suit for possession of land, the report states:

“There is also no justification to enlarge the period of 12 years under Articles 64, or 65. Under the I 908 Act also, the period of limitation was l2 years for a suit under Article 142 (Article 64 of the 1963 Act) and Article 144 (Article 65 of the 1963 Act).”

A similar stance has been adopted with respect to land belonging to local authorities or the state or central governments. The report points out that the period of limitation under the 1908 Act was 60 years under Article 146-A (Article 111 of the 1963 Act) and Article 149 (Article 112 of the 1963 Act) and it was reduced to 30 years, following a policy decision to reduce the maximum period of 60 years for several articles to 30 years for all of them. It is to be noted that under the 1963 Act, the maximum period for any suit is not more than 30 years. With respect to the period of limitation prescribed with respect to evicting encroachers or occupiers of land belonging to the State, the commission has said:

“Providing the maximum period of thirty years under the Limitation Act for a suit under Articles 111 and 112 of the Limitation Act, 1963 would dispel the possible difficulty that may arise for recovering possession of lands belonging to the local authorities and the government, which were encroached upon or otherwise came into the possession of private individuals, to the extent dealt with under these sections. It is not advisable to change the provisions of the Limitation Act to the extent of taking away the provisions relating to adverse possession in respect of lands belonging to the local authorities and the government, in view of the clear language employed in Section 27 read with Articles 64,65, 111 and 112.”

The report further states:

“The government cannot be extended with any premium for their laxity, if any, in bringing a suit for possession even within the larger period of 30 years. There is also no justification for the abolition of adverse possession in relation to government property. There cannot be any greater leniency in favour of the Government than that is provided under Article 112 of the Limitation Act, 1963.”

Notably, disregarding the Supreme Court’s advice to consider abolishing ‘bad faith’ adverse possession, the Law Commission has categorically stated that there cannot be any justification for making the doctrine available only to those who do not dishonestly enter the land with full consciousness that they were trespassing into another’s land. “It is also not just and proper to deny the plea of adverse possession to a naked trespasser entering the land without good faith,” the commission has added.

Besides this, the commission has also said that the Limitation Act, 1963 did not contemplate any compensation being paid either to the trespasser by the true owner for improvements in the property, not to the owner by the adverse possessor. The commission has further declined to recommend special safeguards for non-resident Indians (NRI) under Articles 64 or 65. “There are ways and means for NRIs to protect their property. The technological development, to a great extent, would be a beneficial factor in favour of them too,” the report states.

Finally, the commission concludes:

“The Law Commission is of the considered view that there is no reason or justification to enlarge the period of limitation provided under Articles 64, 65, 111, or 112. However, it is expedient to delete the words “including the Government of the State of Jammu and Kashmir” from Article I12, in view of the omission of the words “except the State of Jammu and Kashmir” from sub-section (2) of section 1 of the Limitation Act, 1963 by the Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019). The commission recommends accordingly.”

The Commission consists of Justice(Retired) Ritu Raj Awasthi (former Chief Justice of Karnataka High Court and judge of Allahabad High Court), Justice (Retired) KT Sankaran(former judge of the Kerala High Court), Professor Dr. Anand Paliwal and Professor DP Verma.

Law Ministry representatives dissent

The Secretaries of the Department of Legal Affairs and the Legislative Department, who are ex-officio members of the Commission, expressed their dissent. They said that the Commission did not consult the relevant Ministries of the Government of lndia and States from where useful inputs could have been received. They expressed the apprehension that the provision might be misused by landgrabbers and land mafia.

"lf plea of adverse possession succeeds against the State, common good suffers since adverse possession does not set limit on the extent of land nor its purpose nor the income level of the occupant claiming adverse possession of Government land", they said in the dissent note.

Click here to read the report

Click here to read the dissent note given by Law Ministry officials