In a recent report, the Law Commission of India has recommended against making any amendments to the law governing adverse possession. The commission, led by Justice Ritu Raj Awasthi, stated that there is no justification for altering the existing legal framework on this issue. However, it should be noted that one ex-officio member of the commission dissented, arguing that the law of adverse possession serves no useful purpose in light of the land laws enacted in various states to protect the interests of the underprivileged. The member also pointed out the possibility of fraudulent claims of adverse possession, citing numerous court cases where such claims were rejected.
Adverse possession refers to a situation where a person acquires title to immovable property by openly and continuously possessing it in defiance of the true owner’s rights for a specified period, typically 12 years. For government-owned property, the limitation period is extended to 30 years. The commission’s report also acknowledges that courts have recognized the acquisition of limited rights through adverse possession.
The commission’s review of adverse possession laws was prompted by the Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan case, in which the Supreme Court expressed the need to reexamine the existing legal framework. The court disagreed with the notion that a trespasser could acquire perfect title through adverse possession and called for a fresh perspective on the matter.
The 19th Law Commission had previously addressed this issue and concluded that the 12-year limitation period provided sufficient protection for real owners. The commission’s consultation paper-cum-questionnaire emphasized the importance of retaining the doctrine of adverse possession to safeguard the rights of bona fide possessors, while also recognizing the difficulty in proving ownership through adverse possession.
In its recommendations, the Law Commission finds no reason to extend the limitation period for adverse possession claims. It suggests removing the reference to the “Government of the State of Jammu and Kashmir” from Article 112 of the Limitation Act, 1963, due to the omission of the words “except the State of Jammu and Kashmir” in Section 1(2) by the Jammu and Kashmir Reorganisation Act, 2019.
The commission argues that the existing law on adverse possession ensures there is always an owner or claimant to disputed land. This allows the adverse possessor’s claim to be validated only when the true owner’s effective authority can be proven to have been lost. The law also provides a mechanism for the owner to challenge the adverse possessor’s claims by demonstrating continued control over the property.
Regarding the issue of compensating landowners, the commission advises against introducing any provisions for such compensation. It argues that an adverse possessor, after wrongfully occupying the land, may be interested in retaining it even after paying compensation to the owner. Furthermore, the process of determining compensation could lead to lengthy litigation and disadvantage the owner seeking to recover possession.
While the Law Commission’s recommendations have been largely supported, dissenting opinions from other ministries and departments highlight the absence of consultations with relevant government bodies. They argue that the lack of input from these authorities limits the breadth of deliberation on this important matter.
Critics of the current law point out that adverse possession can be susceptible to misuse, particularly by land mafias, builders, and powerful interest groups who are not excluded from making claims under the present legal framework. They argue that claims of adverse possession protecting the rights of the poor overlook the potential abuse of the law.
The Law Commission of India’s report suggests maintaining the current law on adverse possession without any significant changes. The commission finds no justification for altering the existing legal framework, emphasizing the importance of striking a balance between the rights of adverse possessors and the interests of true property owners.
