Law Of Adverse Possession - Whether Might Is Right?
Rakesh Chopra, Advocate
Punjab and Haryana High Court
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Date : 27/01/2022 Location : P/343/1992
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Law Of Adverse Possession - Whether Might Is Right?Law of Adverse possession is considered by most of the persons living in this society including legal luminaries as legalising the concept of medieval and an old era when there was- Might is right? In Medieval times or even before independence of our country from British regime, "Might is Right" was the often-prevalent system in our country. In simple terms, whosoever was powerful was able to make way and there was no redressal forum for the victim, simply for the reason there was no law of land and for many other reasons. Law of Adverse Possession in legal terminology, is that law, which legalises the right of a wrong-doer over the immovable property after the elapse of the prescribed time. In other words, it gives an opportunity to the person who enters in unauthorised possession over a particular piece of land/building/plot to get the ownership rights over the said property. The courts of law in India, by and large, have rejected the right of such person to get himself declared owner of the property or even to make him owner while defending his right of ownership on the basis of Adverse possession, simply for the reason, such type of person deserves no sympathy at all and also because on the ground of equity. It has been consistent view of Hon'ble Apex Court as well as various High Courts of our country that any person claiming any such right under law of Adverse possession does not deserve protection of law/judicial system. In Judgment, Hemaji Wagahji v. Bhikabhai, the Hon'ble Apex Court even has gone to observe that Law of Adverse possession needs a change as it deprives the ownership of a person merely for inaction within in limitation- law should not benefit a person who takes possession of the property of the owner in contravention of the law. Most of the suits filed by the plaintiff on basis of Adverse possession, have been held to be not maintainable on the ground that the law of Adverse possession is a defensive right and cannot be used as Attack. As being simply made out by various courts this law has been held to be inequitable and based upon theory of "Might is Right". But if we go into deep analysis then it is not so. In my view, the person relying upon the law of Adverse possession has to go through many phases and further has to comply with the very strict ingredients of law, as laid down by Hon'ble Apex court and various High Courts of our country. It is not as simple as being said, that one gets right of ownership over the immovable property by pleading Adverse possession and leading evidence thereupon. The tests laid down by various Hon'ble Apex court and various High Courts have been very strict, which can be summarised as hostility of possession, continuity of possession over immovable property for the last 12 years against private persons i.e., excluding government owned or public properties or having semblance of such type of properties. Apart from that one is required to strictly prove that his/her possession, has been without payment of any rent/lease amount/batai to the true owner. Further knowledge of true owner has to be proved by the person claiming the Adverse possession in order to show the complicity and further such person has to prove he/she has been in possession as owner and that too in an open manner. Even various Hon'ble Courts have further gone to the extent of laying down the law about the mentioning of particular period of time as to when such type of possession came into existence. So, only after said tests are passed by the person relying upon law of Adverse possession, he or she may be able to get the protection of courts. However, in spite of all this on the record, courts have been very reluctant and have rarely protected the person claiming Adverse possession. Hence, various tests laid down, have not been accepted by the Hon'ble Courts, in spite of the fact same were fulfilled. So, all this shows the hesitancy on the part of Hon'ble Courts to give protection to the so-called wrongdoer in spite of such person having passed the tests laid down by various Hon'ble courts. In that way, the view taken by the Hon'ble Courts is right that law of Adverse of possession needs a change. The legislation in its wisdom may or may not proceed in that direction. But now moot question is- What is to be done if law of Adverse of possession is not to be changed and remains part of the Limitation act, 1963 and person claiming Adverse possession fulfils all the tests laid down by Hon'ble Apex Court and High Courts. In that case, there should not be any doubt that such type of persons should get the benefit of provisions of law, for having fulfilled the stringent tests. Here the medieval theory- "Might is Right" is allowed to become applicable/comes into picture and that too same gets reckoning on account of the silence of victim which plays significant role to his or her detriment. So, prima facie speaking, law of Adverse possession apparently seems to be linked to the medieval theory- "Might is Right". But strictly it is not, because in modern India aggrieved person has got numerous rights/remedies to disrupt the so-called wickedness of the proponent relying upon Adverse possession, having all the time and forums to act swiftly. Hence, in my view it is a misconception to conclude that Adverse possession is "Might is Right". On the contrary it should be taken as awakening call to rise from slumber.
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