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Report No. 89

35.11. No change needed.- After the passing of the Act of 1963, no controversy has arisen justifying a change in the Act.

35.12. Article 64.- This takes us to Article 64, which reads as unde.-

"64. For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed.

Twelve years.

The date of dispossession."
Article 142 of the Act of 1908 was as under:
"142. For possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession.

Twelve years.

The date of dispossession or discontinuance."

This was identical with Article 142 of the Act of 1877 and Article 143 of the Act of 1871.

The present article adds the words 'based on previous possession and not on title1. The change, to some extent, follows the scheme suggested by the Law Commission in its Report2 on the Act of 1908.

This article needs no change.

1. See para. 35.17, infra.

2. Law Commission of India, 3rd Report (Limitation Act).

35.13. Article 65.- Article 65 reads as unde.-

"65. For possession of immovable property or any interest therein based on title.

Twelve years.

When the possession of the defendant becomes adverse to the plaintiff.

Explanation.- For the purposes of this artic.-

a) where the suit is by a remainderman, a revisioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, revisioner or devisee, as the case may be, falls into possession;

(b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;

(c) where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession."

This article has replaced Article 144 of the Act of 1908, which was as unde.-

"144. for possession of immovable property or any interest therein not hereby otherwise specially provided for.

Twelve years.

When the possession of the defendant becomes adverse to the plaintiff.

This was identical with Article 144 of the Act of 1877.

Article 145 of the Act of 1871 was as under:

"145. For possession of immovable property of any interest therein not hereby the otherwise specially provided for.

Twelve years.

When the possession of the defendant, or of some person through when he claims, become adverse to the plaintiff."

35.14. The position of the illegal occupant.- The doctrine of acquisition of title by adverse possession is deeply rooted in our system of jurisprudence. The doctrine is derived from the Roman Law concept of usucapio and longi temporis praescriptio, but in Roman Law, there was an added requirement that the possession must be bona fide and for justa causa. English law has not insisted on the requirement of justa causa. The U.K. Law Reform Committee1 has defended the doctrine by observing that "certainty of title to land is a social need and occupation of land which has long been unchallenged should not be disturbed." Thus, the English version is just the opposite of the Roman concept.

In the registration systems of certain Commonwealth countries, a distinction is made between the acquisition of title by an adverse possession to registered land and unregistered land, with the result that a rank trespasser or a squatter is not able to extinguish the title of a registered proprietor.2-3

1. Law Reform Committee, 14th Report (on acquisition of easements and profits by prescription), Cmd. 3100, p. 12, para. 36.

2. Michael J. Goodman Adverse Possessi.-Morality and Motive, (1970) 33 Modern Law Review 281, 282.

3. q J.S. Williams Title by Limitation in a registered conveyancing system, (1968) 6 Alberta Law Review 69.

35.15. Argument of injustice.- This, however, is not the position in England. A person with evil intentions can usurp somebody else's land, even after forcibly evicting him, and can still perfect his title by adverse possession. On the other hand, if he enters into possession in a bona fide manner and with "justa causa", he would not be able to perfect his title. When the inequity of the position resulting from the interpretation of the word "adverse" was argued in England before Harman, J.1, (as he then was), he had interjected as under:

"You are worse off when you enter lawfully"

To this, the reply from the Bar w.-"Yes, often; the case is by no means as startling as it sounds, because one has a comparable situation in detinue."

1. Bridges v. Mees, (1957) 1 Ch 475 (481): (1957) 2 All ER 577; see Michael Goodman Adverse Possessi.-Morality and Motive, (1970) 33 Modem Law Review 281, 285, 286 and f.n. 35.

35.16. Questions posed as to squatters.- In view of the possibility of unjust results flowing from the application of this doctrine, one writer1 poses two questions:

(1) Has "squatter's title" to land, with its undertones of "land-stealing", any place in a civilised society, particularly a society committed ultimately to universal state registration of title to land?

(2) If, "squatter's title" can still perform a useful, indeed a necessary, function, ought it to require that the "squatter" should have a particular intention or motive before allowing him to acquire title?

However, after an exhaustive discussion of the merits, the same writer proposes the following answers to the questions so posed:

(1) Acquisition of title by adverse possession is not immoral and can have benign influence on the social policy that security should be given to the long possessor of land.

(2) The motive, intention or belief of the allegedly adverse possessor is immaterial. The deliberate evictor and the mistaken encroacher should both be able to acquire title. Long-continued possession should ipso facto confer title, unless it is proved that that possession began and continued under a valid transaction with the true owner, i.e. that the possession was purely derivative, adverse possession.

But if the defendant trespasser is a person who wishes to oust the plaintiff who was himself a prior trespasser or a person who did not come into possession as a trespasser but continued to bold it as such, in order to enable the plaintiff to continue his wrongful possession without disturbance, the law must undoubtedly step in and give relief to the plaintiff. As against the true owner, a person who is in possession for a length of time short of the statutory period is not entitled to any protection but the net result of the decisions under Article 142 is that the true owner must prove that he had a subsisting title on the date of suit.

We therefore suggest that in order to avoid injustice and inequity to the true owner and to simplify the law, Article 142 should be restricted to suits based on possessory title and the owner of the property should not lose his right to it unless the defendant in possession is able to establish adverse possession."

1. Michael J. Goodman Adverse Possessi.-Morality and Motive, (1970) 33 Modern Law Review 281 (Questions) 288 (Answers).

35.17. Law Commission's Report.- Reverting, to the text of Article 65, the articles relating to possession were examined in great detail by the Law Commission1 in its Report on the Act of 1908. There was a preliminary observation that Articles 142 and 144 had introduced a good deal of confusion in the law relating to suit for possession by the owners of property.

The law Commission also discussed the Privy Council case2 on the subject, which had settled the proposition that the rule of prescription should be applied not to cases of want of actual possession by the plaintiff, but to cases where the plaintiff had been out of possession and another person was in possession for the prescribed time. The Commission then made the following recommendation on the subject:

"In our opinion, Article 142 must be restricted in its application only to suits based on possessory title. The plaintiff in such a suit seeks protection of his previous possession which falls short of the statutory period of prescription, to recover possession from another trespasser. The plaintiffs prior possession no doubt entitles him to protection against a trespasser, though not against the true owner. The true owner's entry would be a rightful entry and would interrupt.

1. Law Commission of India, 3rd Report (Limitation Act, 1908), paras. 131 to 136.

2. Agency Company v. Short, (1888) 13 AC 793 (PC).

35.18. Law Commission's recommendation.- For these reasons, the Law Commission (in that Report) recommended a re-draft of Article 142 as unde.-

"For possession of immovable property based on possessory title where the plaintiff while in possession of the property has been dispossessed-12 years from the date of dispossession."

A new article was to govern suits based on tit.-the 12 years period to be counted from the time when possession becomes adverse.

35.19. Summary of the position in Supreme Court judgment.- The amended article, though phrased somewhat differently has not given rise to any serious controversy and the Supreme Court in a recent judgment on the subject, has succinctly summarised the law on adverse possession or hostile title thus:1

"Adverse possession or hostile title must be established by a consistent course of conduct and it cannot be shown by a stray or sporadic act of possession. However, all that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. Such a requirement may be insisted on, where an ouster of title is pleaded but that is not the case here.

One of the important facts, which clearly proves adverse possession, may be that the possessor had let out the land for cultivatory purposes and used it himself from time to time without any protest from the owner or any serious attempt by the owner to evict the possessor, knowing full well that he was asserting hostile title in respect of the land. If a person asserts a hostile title even to a tank which, as claimed in the present caste by the owner, i.e. the municipality, belonged to it and despite the hostile assertion of title no steps were taken by the owner, to evict the trespasser, his title by prescription would he complete after thirty years."

1. Kashitish Chandra Bose v. Commissioner of Ranchi, (1981) 2 SCC 103.

35.20. Developments in U.K.- Wallis's cas.- In England, certain developments in the theory of adverse possession have taken place as regards protecting the real owner of the land (who has reserved the same for development or some specific purpose in mind, to be executed at a future date). In Wallis's case1, Lord Denning M.R. observed as under:2

"Possession by itself is not enough to give a title. It must be adverse possession. The true owner must have been dispossessed and another must have discontinued possession or have been dispossessed and another must have taken it adversely to him. There must be something in the nature of an ouster of the true owner by the wrongful possessor."

1. Wallis's Cayton Bay Holiday Camp Ltd. v. Shell Mex and B.P. Ltd., 1975 QB 94 (103).

2. See, for Further discussion, (1980) Current Law, Part 5, p. 244.



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