Why encourage ‘illegal occupation’ of property?
Despite the Supreme Court recommendation to abolish the law of adverse possession four years ago, the Parliament has yet to take any action
We have, in the previous issue, discussed the concept of adverse possession. If a person unlawfully occupies a property for an uninterrupted period of 12 years, then the failure of the actual owner to file a suit against the unlawful occupant is likely to result in the latter acquiring a better title than the real owner. This concept of adverse possession though unfair to the real owner of the property is still recognised by law. A similar view was expressed by the Supreme Court in its judgment passed in the Haryana vs Mukesh Kumar case on September 30, 2011.
Haryana had claimed that it was in adverse possession of some land owned by the defendant for a period of 55 years. On the basis of this adverse possession plea, the state sought declaration of right of ownership of the land and approached the court for the same. Haryana also pleaded before the court that the real owner must be perpetually barred from interfering with the peaceful possession of the land.
The trial court observed that the state of Haryana had failed to prove adverse possession on the land as it had not provided any documentary evidence showing possession of the land. The court also observed that the revenue records placed on record by the real owner showed that he was in actual possession of the land and consequently Haryana’s claim that it was in possession of the land for a continuous period of 55 years stood falsified.
The court also observed that no person could claim a declaration of ownership on the basis of plea of adverse possession. Therefore, the issue was decided against the state of Haryana and the court concluded that such a suit was not even maintainable.
Dissatisfied with the order of the trial court, an appeal was filed by Haryana before the additional district judge, Gurgaon ( ADJ). Dismissing the appeal, the ADJ not only upheld the trial court order, it also observed that the government/police department was meant for the protection of citizens and their property and that the police department had unnecessarily dragged the real owner into pointless litigation.
The state of Haryana then filed a second appeal before the high court of Punjab and Haryana. Again, upholding the order of trial and appellate court, the high court observed that the state which was responsible for the protection of life/ property of its citizens, was in the present case itself trying to grab the land/property of the real owner on the plea of adverse possession and hence the action of the state of Haryana was disgraceful.
Despite three strong judgments against it, the state of Haryana once again approached the Supreme Court with its adverse possession appeal.
This was dismissed again, with the apex court observing that “adverse possession allows a trespasser to gain legal title to l and/ property which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted into legal title is, logically and morally speaking, baffling.” With such an observation the Supreme Court recommended to the Parliament to either abolish the law of adverse possession or make necessary changes in it and dismissed the case of the plaintiff.
Almost four years have passed since the Supreme Court recommended abolition of this unfair law, but the Parliament has yet to take appropriate steps to abolish or amend the law of adverse pos- session. A doctrine of adverse possession still exists that favours an unlawful occupant/ person claiming ownership over someone else’s property.