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Report No. 89

35.21. Law Reform Committ.-views of.- The Law Reform Committee1 in England (after some discussion) concluded as under, on the subject:

"There has now apparently been established a quite general doctrine of an implied licence from the true owner to the would be adverse possessor permitting him to commit the acts of possession upon which he seeks to rely, without any specific or factual basis for such an implication. The effect of implying such a licence is to prevent time running in favour of the adverse possessor, since time does not run in favour of the licensee. If this doctrine extends as far as it appears to have been extended (by Gray v. Wykoham¬Martine), it amounts, in effect, to a judicial repeal of the statute. The philosophy behind this approach has been expressed by Lord Denning M.R., as follows:

"The reason behind the doctrine is because it does not lie in that other person's, mouth to assert that he used the land of his own wrong as a trespasser. Rather, his user is to be ascribed to the licence or permission of the true owner.

We, however, prefer the more traditional approach recently restated by Sir John Ponnycuick, delivering the judgment of the Court of Appeal in Treloar v. Nutel, 1977 All ER (230): (1976) 1 WLR 1295 CCA, in which he said:

"If a squatter takes possession of land belonging to another and remains in possession for twelve years to the exclusion of the owner, that represents adverse possession and accordingly at the end of the twelve years the title of the owner is extinguished. That is the plain meaning of the statutory provisions."

1. Law Reform Committee Report, (September 1977) Cmd. 6928, paras. 3.50 to 3.52.

35.22. The Law Reform Committee further considered it clear that the two approaches could not be reconciled. It concluded as under:

"We consider that the law should be restored to the law as stated in Treloar v. Nute, (1977) 1 All ER 230. There can, in our view be no justification for implying a licence or other similar position, in any case where there is no factual basis for such an implication. The precise formula for such a restoration is not easy, since the present law is that if the land is in the possession of some person in whose favour the period of limitation can run, then such possession is 'adverse' (Limitation Act, 1939, section 10(1) and this appears to be quite plain.

We do not consider that the suggestion of the Institu.-that there would be a presumption that possession is adver.-would really, add anything to this existing provision. Accordingly, we think that it may be necessary for amending legislation expressly to provide that for the purposes of the Limitation Act "possession" is to bear its ordinary meaning in law, so that it is not to be artificially stripped of its character of being adverse by the application of any implication or presumption not grounded upon the actual circumstances of the case".

35.23. Limitation Amendment Act, 1980 (U.K.).- As a result of the recommendations of the Law Reforms Committee, the Limitation Amendment Act 1980 was passed in England. The following sub-section has been added as sub-section (4) of section 10 of the Limitation Act, 1939, by the Amendment Act of 1980.

"(4) For the purpose of determining whether a person occupying any land is in adverse possession of the land it shall not be assumed by implication of law that this occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter's present or future enjoyment of the land.

This provision shall not be taken as prejudicing a finding to the effect that a person's occupation of any land is by implied permission of the person entitled to the land in any case where such finding is justified on the actual facts of the case."

The Commentator of the Current Law Statutes Annotated1 has observed (with reference to this provision) that this amendment is "another round in the Legislature v. Lord Denning saga".

1. (1908) Part 5, Current Law, p. 24.

35.24. No change needed.- We have made a passing reference to the fact that like many other well established legal doctrines, the doctrine of adverse possession has also attracted the adverse notice of some jurists. However, as stated above, the philosophy underlying the same has become an integral part of our jurisprudence. Both on the merits and on the ground just now mentioned, the doctrine deserves not to be disturbed in its essence.

We have also referred to the developments in England as a matter of interest. In India, these controversies have not arisen. Accordingly, we do not recommend any change in the article.

35.25. Article 66.- This takes us to Article 66, which reads as unde.-

"66. For possession of immovable property when the plaintiff has become en titled to possession by reason of any forfeiture or breach of condition.

Twelve years

When the forfeiture is incurred or the condition is broken."

Article 143 of the Acts of 1908 and 1877 was as under:-

"143. Like suit, when the plaintiff has become entitled by reason of any forfeiture or breach of condition.

Twelve years.

When the forfeiture is incurred or the condition is broken."

In the Act of 1871, Article 144 was in identical terms.

35.26. Case-law.- Many of the judicial decisions usually discussed under this article involve matters of substantive law and we need not pause to discuss them. It is enough to mention one important aspect which was in issue in a Madras case.1 Defendants in that case were in possession of a land on tenancy basis by virtue of a deed executed in 1836. In 1871, the defendants set up a right of permanent tenancy. In 1894, the plaintiff gave notice to the defendants to give up possession of the lands and filed a suit for eviction. The defendants contended that the suit was barred by limitation.

The High Court held that the suit was not barred by limitation and that the tenant repudiating the title of land became liable for immediate eviction at the option of the landlord, but until the landlord indicated that he intended to exercise the option, the tenancy subsisted from year to year and Article 139 of the Limitation Act of 1908 (present Article 67) applied.

But the same High Court, in a later case,2 held that the landlord had got a right to recover possession the moment the forfeiture was incurred, and no overt act (i.e. no act or intimation of an election to avoid the lease) was necessary before bringing an action for ejectment. In such a case, Article 148 (present Article 66) applied and limitation began to run from the date of forfeiture incurred (i.e. the date of wrongful alienation of the property), unless the lessor, by a positive act, affirmed the tenancy and thereby waived the forfeiture.

These and similar rulings are concerned essentially with the law of landlord and tenant. Depending on the view taken on the question of substantive rights of the parties, there may result a difference as to the precise article of the Limitation Act that would be attracted to the particular situation. For that reason, it seems hardly necessary to pursue the matter further.

1. Srinivas Ayyar v. Muthusami Pillai, 1901 ILR 24 Mad 246.

2. Annamalai v. Vythilinga, AIR 1937 Mad 295.

35.27. Limited importance of the issue of forfeiture.- It may also be mentioned that tenancies of agricultural lands are now mostly regulated by the Land Reform Laws enacted by various States. As regards non-agricultural land, again, various rent control laws now contain the law in respect of residential buildings in urban areas. The area where the provisions of the general law of landlord and tenant is applicable to tenancies has now considerably shrunk. Thus, the article under discussion has limited utility, which is practicably confined to residual grounds not touched by special legislation.1

1. See also para. 35.32, infra.

35.28. No change needed.- In the above position, a change in the article is not considered necessary.

35.29. Article 67.- Article 67 reads as unde.-

"67. By a landlord to recover possession from a tenant.

Twelve years.

When the tenancy is determined."

It is identical with Article 139 of the Acts of 1908 and 1877, and with Article 140 of the Act of 1871.

35.30. Representative of a tenant holding ov.-Whether a tenant.- Some controversy seems to exist as regards the legal representatives of a tenant. In one case,1 the Madras High Court observed that a tenant holding over after the expiry of his term became a tenant on sufferance. The High Court further held that the representatives of a tenant on sufferance were mere trespassers and the lessor could not (by his assent alone) convert such representatives into "tenants" without their concurrence.

However, in another case of the same High Court,2 this view was dissented from and it was held that a suit against the representatives of a tenant after the determination of the tenancy was governed by Article 139 of the Act of 1908 (present Article 67). The Allahabad High Court3-4 has also concurred in the latter Madras view. In such a case, the landlord should be able to give his assent to their continuing in the possessi.-as he could have done if the deceased had been alive. As the latter view seems to meet the requirements of the provisions of section 116, T.P. Act.

1. Vadapalli Narasimham v. Dronamraju, 1908 ILR 31 Mad 163.

2. Subbraveti Ramiah v. Gundala Ramanna, 1910 ILR 33 Mad 260.

3. Sheo Dulare Lal Sah v. Anant Ram, AIR 1954 All 475.

4. See also Sardaraman v. Sundar Lal, AIR 1968 All 363.

35.31. Mortgagee in possessi.-a landlord.- In one case,1 the erstwhile Hyderabad High Court held that where the mortgagee leased the mortgaged property to the mortgagor as his tenant and subsequently sued the mortgagor for ejectment, the claim for possession was not by the mortgagee as such, and would be governed, by Article 139 of the Act of 1908. But the Lahore High Court has observed1 that the plaintiff was not suing the defendant merely as a landlord for their ejectment, but he had brought the suit on the basis of his right as a mortgagee with possession.

1. Ranba v. Bansilal, AIR 1953 Hyd 231.

2. Amru v. Santa, AIR 1936 Lah 441.

35.32. No change needed.- Ordinarily, we would have gone into details of such controversies, revealing a disparity of views. However, the general law of landlord and tenant has now very limited application,2 and the article is now needed only for tenancies not controlled by special legislations. Its utility being so limited, we would leave the matter at that.

In the result no change is needed in the article.

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