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Apex court: adverse possession law, a windfall to squatter

J. Venkatesan

Let government take a fresh look at it

Law gives right to occupier of land by force to claim ownership
It is irrational, illogical and harsh to true owner: Bench

New Delhi: The Supreme Court has recommended to the government that it make suitable changes in the law of adverse possession, which gives a right to the occupier of land by force or otherwise to claim right, title and ownership of the property.

A Bench consisting of Justices Dalveer Bhandari and H.S. Bedi said the law 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.”

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 the 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

The Bench said: “We fail to comprehend 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, Hemaji Waghaji Jat was stated to have forcibly taken possession of vast acres of land at Yuvarpura village in Gujarat in 1960 from the respondents and he was in continuous possession of the property till 1986.

Under the law of limitation, a person cannot bring action to recover any land after the expiration of 12 years of adverse possession by another.

Thus he became owner of the suit property by adverse possession.

However, Hemaji claimed that he was the true owner of the property. A trial passed a decree in his favour.

The respondents, Bhikhabhai Khengarbhar Harijan and others, preferred an appeal and the district judge, Palanpur, allowed it, holding that Hemaji failed to prove that he had purchased the land.

Appeal dismissed

The Gujarat High Court confirmed the district judge’s order. Dismissing Hemaji’s appeal against this judgment, the apex court, quoting an earlier decision, said the effect of the law of limitation would seem draconian to the owner and a windfall to the squatter.

Part of human rights

“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.”

Now even right to property was considered very much part of human rights and adverse possession must be considered from this perspective.

“In our considered view, there is an urgent need for a fresh look at the law on adverse possession,” the Bench said and directed that a copy of this judgment be sent to the Law Secretary for taking appropriate steps in accordance with law.

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