In Chandi Prasad Vs. State, the Himachal Pradesh High Court while deciding on Adverse Possession said that -
It is well recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner.
Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. It is equally settled that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. In the eyes of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Even non-use of the property by the owner for a long time won’t affect his title.
23. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immoveable property and conferring upon a third party encroacher title where he had none. (Refer:
In Karnataka Board of Wakf v. Government of India and others (2004) 10 SCC 779 the Hon’ble Supreme Court held that one who pleads adverse possession should be very clear about the origin of title over the property. He must specifically plead it.
Over the years there has been a new paradigm to Limitation Act as the same has undergone a change. The burden of proof is now on the person who alleges his adverse possession, particularly once a party has proved its title. The starting point of limitation commences not from the date when the right of ownership arises in favour of the original owner but from the date a party claims his possession to have become adverse.
The Supreme Court in Brij Mohan Sood v. Parshotam Singh and others 2014(1) Him. L.R. 556
has held as follows:-
Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is well settled principle that a party claiming adverse possession must prove that his possession is “ nec vi, nec clam, nec precario” i.e. peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual visible, exclusive, hostile and continued over the statutory period.
Therefore, a person who claims adverse possession has to show (a) on what date he came into possession; (b) what was the nature of his possession; (c) whether the factum of possession was known to the other party ; (d) how long his possession is continued; and (e) his possession was open and undisturbed. It has to be remembered that the person pleading adverse possession has no equity in his favour since he is trying to defeat the right of the true owner, therefore, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
The Hon’ble Supreme Court in its decision rendered in State of Haryana v. Mukesh Kumar and others, (2011) 10 SCC 404 pointed out the need to have a fresh look at the law of adverse possession. The law on adverse possession was described as irrational, illogical and wholly disproportionate and extremely harsh for the true owner and a windfall for dishonest person who had illegally taken possession of the property.
After referring to the earlier judgments in Hemaji Waghaji v. Bhikhabhai Khengarbhai (2009) 16 SCC 517 and P.T. Munichikkanna Reddy v. Revamma (2007) 6 SCC 559 the Hon’ble Supreme Court reiterated the observations therein that the law ought not to benefit a person who in clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. The Hon’ble Supreme Court expressed its difficulty to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to lose its possession only because of his inaction in taking back the possession within limitation. It was observed as follows:
“In our considered view, there is an urgent need of fresh look regarding the law on adverse possession.
We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law”.
It is well recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner.
Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. It is equally settled that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. In the eyes of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Even non-use of the property by the owner for a long time won’t affect his title.
23. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immoveable property and conferring upon a third party encroacher title where he had none. (Refer:
In Karnataka Board of Wakf v. Government of India and others (2004) 10 SCC 779 the Hon’ble Supreme Court held that one who pleads adverse possession should be very clear about the origin of title over the property. He must specifically plead it.
Over the years there has been a new paradigm to Limitation Act as the same has undergone a change. The burden of proof is now on the person who alleges his adverse possession, particularly once a party has proved its title. The starting point of limitation commences not from the date when the right of ownership arises in favour of the original owner but from the date a party claims his possession to have become adverse.
The Supreme Court in Brij Mohan Sood v. Parshotam Singh and others 2014(1) Him. L.R. 556
has held as follows:-
Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is well settled principle that a party claiming adverse possession must prove that his possession is “ nec vi, nec clam, nec precario” i.e. peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual visible, exclusive, hostile and continued over the statutory period.
Therefore, a person who claims adverse possession has to show (a) on what date he came into possession; (b) what was the nature of his possession; (c) whether the factum of possession was known to the other party ; (d) how long his possession is continued; and (e) his possession was open and undisturbed. It has to be remembered that the person pleading adverse possession has no equity in his favour since he is trying to defeat the right of the true owner, therefore, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
The Hon’ble Supreme Court in its decision rendered in State of Haryana v. Mukesh Kumar and others, (2011) 10 SCC 404 pointed out the need to have a fresh look at the law of adverse possession. The law on adverse possession was described as irrational, illogical and wholly disproportionate and extremely harsh for the true owner and a windfall for dishonest person who had illegally taken possession of the property.
After referring to the earlier judgments in Hemaji Waghaji v. Bhikhabhai Khengarbhai (2009) 16 SCC 517 and P.T. Munichikkanna Reddy v. Revamma (2007) 6 SCC 559 the Hon’ble Supreme Court reiterated the observations therein that the law ought not to benefit a person who in clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. The Hon’ble Supreme Court expressed its difficulty to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to lose its possession only because of his inaction in taking back the possession within limitation. It was observed as follows:
“In our considered view, there is an urgent need of fresh look regarding the law on adverse possession.
We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law”.
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