Adverse Possession - A Socio Economic Disaster

  1. Individual Citizens have rights in respect of their lands which include protection from unlawful possession and trespass.
  2. As per the provisions of Section 27 of Limitation Act r/w article 64, if a person is dispossessed of his land/property he has right to file a suit to recover the possession, and if he fails to bring such suit his right to such property is extinguished.
  3. This is the protection which the statute undertakes to give to the person that his property is not encroached/trespassed. And if it is trespassed the individual has right to approach the court and seek relief of getting back the possession.
  4. Over the time law started giving protection to persons who is in illegal possession of land of lawful owners.
  5. In this regard it would be necessary to first understand that the concept of ownership and concept of possession and totally different, and ownership includes possession and not other way round.
  6. In this context it would be necessary to understand whether a person who has illegally taken possession of land of owner can be conferred title and ownership?
  7. To understand this concept we need to understand that land it is owned by the sovereign State and only the surface rights and granted to the holder, who is given right to transfer such rights which are hereditary and transmissible.
  8. The recognition of "Title" such surface rights are done by the state which collects land revenue and Taxes from the land owner.
  9. Therefore if the concept of title has the inbuilt characteristics of disposability transfer and inheritance.
  10. When applying the principle of adverse possession and trespass, it only goes to the aspect of possessory characteristics and not the Ownership or Title characteristics. The question then arises whether mere taking of illegal possession would confer Title as well, on such trespasser? Ans: No it can't.
  11. This aspect of conferment of title raises its own questions as the title can be only transferred or inherited.
  12. Astonishingly there is no transfer or inheritance of "Title/Ownership" involved in case of adverse possession by trespasser.
  13. In this view of the matter, when the right of the title-owner-holder gets extinguished, as a necessary inference, the recognition of the title granted by the state also reverts back to the Sovereign State. Thus the adverse possession trespasser would require recognition from the State for Title and ownership.
  14. Essentially when the title of the original land owner goes to the status of abandonment and extinction, the title vests back to the State by virtue of Sovereign principle of Escheat as stated in Constitution of India and the Land Revenue Code.
  15. Thus in every case where adverse possession is alleged the state becomes necessary party as the State would be entitled to escheat the property and use it for public purposes.
  16. It requires to be stated here that as regards the adverse possessor trespasser, there is no provision in any law, which would entitle the adverse possession trespasser to either claim "Title" in the first place. Such adverse possessor cannot also claim possession as against the State in light of the Law of escheat.
  17. As stated above, Title and Ownership is recognition given by the State, which is Transferable and Inheritable. Adverse possession trespasser has no title or ownership. Therefore he has to seek the recognition of from the state for title and ownership. In this regard such claimant cannot as of right claim title and ownership; nor can he file any suit to claim title or declaration of title or ownership. There is no provision in any law to seek and grant such declaration of title or ownership which is extinguished and reverted back to the state.
  18. State grants recognition of title and ownership to a landowner for his socio economic needs. The state is benefited from the recognition as the land owner then uses the land for productive purposes or he may dispose of the land for commercial benefit and such transferee of title then puts the land to use for socio-economic purposes. In every transfer of title and ownership the State recovers Revenue in the nature of stamp duty land registration fees and Taxes for recoginisation of Title and ownership in the Transferee. The taxing on transfer also serves purpose of public good.
  19. Going by the principles of land acquisition, once the state has recognized the title of the landowner, even the state has to compensate the landowner for deprivation of his social economic status and rights in the land.
  20. Thus in case of adverse possessor trespasser is also required to compensate for the illegal trespass, fraud on Revenue, crime of socio economics nature.
  21. In contrast the adverse possessor trespasser illegally takes over the possession of the recognized title holder, putting a question mark to the state guarantee of recognized title, disrupting the socio-economic feature of the land and depriving the state of its revenues. This is nothing short of fraud on the original landowner, social economics of the State, and also a fraud on the State and its recognition of Title. In one of the judgments of the Hon'ble Supreme Court penned by Justice Katju, right in land is referred to as "human right" as it is socio-economic of being a human, and source of subsistence and financial planning.
  22. With reference to the aforequoted law, thus far, and judgments of several high courts and supreme court [till the advent of the radical decision rendered by Justice Mishra of Hon'ble Supreme Court], there had been a consistent stand that adverse possession trespasser can use his adverse possession only for the purpose of defense and not as offence.
  23. In an ideal society and the legal system & structure which is protected by the state, landowner who uses his land as a resource for production, socio economics and planning, require protection from illegality.
  24. Land owner expects certainty, and expects that the State and the Judiciary doesn't protect and reward or give bounty to an adverse possession trespasser criminal, as against a lawful owner. The landowner puts his hard earned money for acquisition of the land, relies on title conferred by state, plans socio economics, pays taxes to the government. Thus allowing such adverse possession trespasser to claim title is nothing short of judicial protection of thievery.
  25. The Limitation Act of 1963 has copied the text of the British Era Act when the titles were regulated and conferred by the British Govt. The situation has changed and the law now has to be changed and applied in context of the Constitutional and socio economic nature of the property / land.
  26. Having hit by the Covid pandemic, its now necessary to imagine how any investor at global level will be comfortable to invest in properties, to which the judiciary allows to taken over by land grabbers.
  27. In the present 21st century this insanity and nonsense has to stop and a proper law and order situation should be maintained by the State as Sovereign Government for upbringing of the State.
  28. For last 6 years I have written to the Governments to bring in anti land grabbing legislation as a crime, but to no avail. Therefore now it appears that the following suggestions may appease the Government unfortunately but in hope that such changes are made.
  29. The suggestions are as under
  • In all cases pending before the courts the claimant of adverse possession be directed to deposit 150% of today's Market value of the property in the treasury of the government, without which no issue on adverse possession or title be framed.
  • If the issue of adverse possession is framed, unless the amount of 150% of today's Market Value is deposited in Government treasury no decision on the issue given.
  • If any judgment on adverse possession is passed, no decree be drawn unless the amount of 150% of today's Market Value is deposited in Government treasury,
  • If a decree is drawn the same shall not be executable unless the claimant deposits 150% of today's market value of the land in government treasury.

The amount shall be distributed by the Court to the government and the true land owners in proportion of 1:2 respectively.

  • In all cases pending before the court, if claim of adverse possession fails in trial suit, the amount deposited by the claimant of adverse possession, shall stand forfeited to the government and the true land owners in proportion of 1:2 respectively.
  • If any person claims to have asserted adverse possession which is not subject matter of the suit, he shall deposit in the Government treasury 150% of today's market value of the land.
  • If any person commences adverse possession, he shall intimate the Collector of the District and Commissioner of the Police and Income Tax Department, that he has commenced adverse possession and along with the intimation deposit in the Government treasury 150% of today's market value of the land on date of intimation.

If the claim of adverse possession is defeated by the rightful owner the amount so deposited shall stand forfeited to the government and the true land owners in proportion of 1:2 respectively.

  • This should be without prejudice to the right of the true owner to claim compensation and damages as against the claimant of adverse possession.
  • No suit, appeal, writ, slp be entertained unless the State is made party to the suit as regards its right of escheat

In anticipation of a Lawful State


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Sandeep Kapatkar Online
on 08 September 2020
Published in Constitutional Law
Views : 757
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