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

HT Estates - - HTESTATES - Su­nil Tyagi

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.

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