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The Law Commission of India recently published its 280th report titled The Law on Adverse Possession.
The Law Commission of India in its 280th Report titled The Law on Adverse Possession referred Larissa Katz on Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law, to opine that an adverse possessor should be seen as a successful leader of coup d’etat and not as a land thief or a deserving labour. The report states that the concept of adverse possession addresses larger question of vacant possession in contrast with ownership and therefore, the position of an adverse possessor should be viewed and evaluated in that light. No changes have been suggested, except for deletion of the word “including the Government of the State of Jammu and Kashmir” from Article 112, in view of its omission under Section 1(2) Limitation Act, 1963.
“An adverse possessor who is successful at his endeavour, assumes the mantle of ownership for quite the same reasons that a successful coup d'etat produces a govenment whose legitimacy and authority to rule is unabridged by the initial illegality of its means to attain power. The existence of social order necessitates that someone wield the authority of ownership in the former case, and public authority in the latter. Thus, in a way, adverse possession solves the moral problem of agenda-less objects, i.e., owner-less property, just as the recognition of the existing government, howsoever it may have originated, solves the moral problem of people who may be rendered state-less otherwise", the report says.
Distinguishing an act of robbery and that of adverse possession, the report provides that while the modus operandi of a thief is to achieve his goal of permanent control of someone else’s property either by force or by stealth, and assert it thereafter, an adverse possessor has to wait for the statutory time limit to expire in order to establish a better claim than that of the original owner.
In the dissent note by ex-officio members, reliance on the aforementioned theory has been termed “contradictory” and “ridiculous”, adding that neither loss to land resources nor rights of any person will be affected, if the law on adverse possession is struck off.
The supplementary note further clarifies the findings of the report, stating, “The chapter on Adverse Possession vis-d-vis Morality is included in this Report as the Supreme Court in Hemaji Waghaji called the concept of adverse possession to be immoral. The Report seeks to analyse and explain as to how despite popular perception to the contrary, it can still be understood to be moral. For this, reliance is placed on the scholarly opinion of Larissa Katz. It has not been argued that the concept of adverse possession is to be justified on the ground of morality.”
No extension has been provided either to the Government or private individuals under Articles 64, 65, 111 or 112 of the Limitation Act, 1963.
No exception has been carved out for trespasser as an adverse possessor either.
“There cannot be any justification for taking the view that adverse possession should not be made available to those who dishonestly enter the land with full consciousness that they were trespassing into another's land. It is also not just and proper to deny the plea of adverse possession to a naked trespasser entering the land without good faith. Articles 64 and 65 of the Limitation Act do not make a distinction between a trespasser and a person who got possession on the discontinuance of possession by the owner”, the report adds.
The Supreme Court, in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Others, (2009) 16 SCC 517 and State of Haryana v. Mukesh Kumar and Others, (2011) 10 SCC 404, stressed the need to relook the law of adverse possession and recommended the Union of India to make necessary changes.
A reference was thereby made to the Law Commission by the Ministry of Law and Justice vide letter dated 19.12.2008, requesting the Commission to examine and undertake a study in the matter and furnish a report on the same.
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