The Law Commission of India, an independent body set up by the government for legal reforms, has circulated a consultation paper on adverse possession of land and immovable property, seeking views from judges, lawyers, experts and bureaucrats.
Adverse possession is a way to acquire title to property by occupying it for a period of time.
The commission's move comes at a time when the issue of adverse possession has come up in at least 80,000 cases in various courts across the country.
The consultation paper is based on two crucial judgements delivered by the Supreme Court last year. In the Munichikkanna Reddy vs Revamma and State of Harayana vs Mukesh Kumar cases, the court asked whether there was enough evidence to substantiate the claim of adverse possession and in both cases the answer was negative.
Further, the court said it needed to be seriously examined whether the possession of property should be extended to a “dishonest” trespasser and to those who might have purchased the property from such trespasser. While claims based on adverse possession may deserve to be recognised, it can still be ensured that the possession originating from dishonesty and foul means does not receive the same recognition.
"No doubt, the law of adverse possession needs to be revisited and revised with changed notions of economic policy. However, the complete abolishment of the law on adverse possession will result in practical problems affecting bona fide possessors, especially in rural areas and would cause chaos,” Heena Chheda, partner, Hariani and Co Advocates and Solicitors told Business Standard.
“Nevertheless, Parliament should seriously consider abolishing ‘bad faith adverse possession’, i.e., adverse possession achieved through intentional trespassing. As proposed by the Supreme Court, the idea of compensation to be granted to the title owner by the adverse possessor would at least provide some respite to the title owner and would have a punitive effect on the dishonest trespasser,” Chheda added.
According to the Law Commission, there are different views over the abolition of adverse possession. One viewpoint is that the wholesale abolition of adverse possession would trigger practical problems affecting poor people who possess properties without title documents. People in rural areas, who do not have proper land records, and even legitimate owners who may have only the element of possession may suffer if the concept of adverse possession is abolished or allowed to remain under stringent conditions.
On the other hand, the proponents of abolition argue why those who “grab” land by force or otherwise without title documents should be allowed to get title by adverse possession. Besides, they said why should “land theft” be made the basis for deriving title. The commission believes there was perhaps a need to strike a fair balance between competing considerations in the process of considering the changes in law if any.
