The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Adverse possession is a hypothesis, deep-rooted in common law, which grants a person the right to acquire ownership of land through usage. It tends to terminate the title of the owner and instead affords it to the person using the land after certain conditions are met.
Around the year 1275, Adverse Possession surfaced in England and by the mid 1600 it was introduced in the matters of frequently arising land dispute lawsuits. Accordingly, the United States adopted it and later India as well.
A constant apprehension that continually arises from the society is that how can ownership be awarded to somebody who wrongly dominates someone else’s legitimate land. Does this mean that the law allows for torts such as trespass to be committed?
It is important to abolish such misconception. Despite their prima facie similarities, the two concepts are very different from each other. Foremost there has to be emergence of some rudimentary aspects for the establishment of adverse possession.
Primarily, the person who claims adverse possession needs to have physical possession and subsequently, there is requirement for a continuous time period for which the land was in possession of the possessor. It cannot be a fleeting possession. It must exhaust the time limit affixed by the statute. Section 27 of the Limitation Act 1963 refers to adverse possession and codifies the concept of the extinguishment of the owner’s title. The limit for private property is 12 years under Article 65 of Schedule 1 and 30 years for Government owned property under Article 112 of schedule 1.
As per the statute, if a private land is inhabited by someone who is not the owner, such possession can be disputed by the owner within 12 years of the possession. The expiration of the time limit causes him to lose his right to the land and cannot file a suit further.
“Adverse possession must be nec vi, nec clam, nec precario.” Case law: P. Lakshmi Reddy v. L Lakshmi Reddy.
With respect to the possessor to plead adverse possession, the land must be used by him for a constant period and largely uninterrupted. Furthermore, the possession of such land should be open and not be hidden from both the owner and the public. There must be acknowledgement of the fact that the land is occupied against the owner’s legal right and must be evident to all. Kshitish Chandra Bose v. Commissioner of Ranchi depicted a similar position.
This possession must additionally be exclusive. It must be the possessor’s intent to exclude the owner from such land and to solely own and use such land as well. The court observed in a 2019 judgement Mallikarjunaiah v Nanjaiah, “Mere continuous possession, howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner.”
There is also intention to possess that comes into play here. When possession is discussed, The Latin maxim animus possidendi is often consulted. Case law: Annakili v. A Vedanayagam. There holds no case of adverse possession if there is no desire to use the land. The court noted in the case of Bhimrao Dnyanoba Patil v. State of Maharashtra:
“Unless enjoyment of the property is accompanied by adverse animus, mere possession for a long period even over a statutory period, would not be sufficient to mature the title to the property by adverse possession.”
There have been various disputes that transpired on the possession of lands by squatters and by title less people. Several instances it was adverse possession that won in such scenarios as shown hereafter.
The instant dispossession of the owner follows, this possession arises consistent with Article 64.
“The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner”.
Moreover, in Valliamma Champaka v. Sivathanu Pillai case, the court observed that section 27 stands as an exception to the general rule which bars only the remedy and not the title after the expiry of the limitation. This section revokes the title along with its remedy.
However, the recent years have portrayed a shift with how adverse possession was once perceived. We live in a revisionist society. Therefore, in order to keep up with the forward-looking society, the law must be progressive so as to support it. The same applies the doctrine of adverse possession.
Similarly, in its most recent crucial decision of the State of Haryana v. Mukesh Kumar, the court rule that adverse possession is oppose to the principle of the law and must be revise as such. It was noted as an archaic law and questioned its morality.
Learned Justice Dalveer Bhandari put forward this question, “How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling?”
Both the above-mentioned cases have regarded the concept as “irrational, illogical and wholly disproportionate.”
It has been recognized that over the years preference given to the possessor as per the common law approach is gradually gaining criticism from the viewpoint of rights.
Though this concept prevailed in prehistoric years, but it is a different world that stands today and therefore the justification of adverse possession seems to weaken as we go forward.
In favor of:
The rationale for adverse possession persists to be deep-seated steadfastly in an idealistic sense. In the early years of Greece and Rome it was believed that the person achieved a greater ownership to the land he nurtured than the actual title owner.
Therefore, the prime validation for adverse possession arises from the Latin maxim of “Vigilantibus non Dormientibus Jura Subveniunt”. It means that the law does not protect those who sleep on their rights. According to the sleeping theory, “you snooze, you lose”, when the owners sleep on their rights and do not use their land, they deserve to lose their title.
This maxim fastens upon individuals the need to not only be aware of their rights under law but also to ensure that they are not uninformed or careless to such rights. It is the foundation of the laws of limitations that exist today.
A vital factor to keep in mind is that land is a valuable resource and is restrict in nature. So, such a resource must be cherish in a healthy aspect when one owns it. The concept of possession is “polymorphous embodying both a right (the right to enjoy) and a fact (the real intention)”. Even today, many people continue to be deprive of land. The era that we live in is where a wealthy individual can hold several assets and the poor is not even in a position to own one. The population of India is project close to 1.380 billion and people continue to affect by the problems that take place because of it. Hence, it is not unusual to locate many folks taking a night’s rest on the footpaths or communal parks even.
These kind of situations makes adverse possession indisputable. In India, income inequality and classicism create vast imparity among the society. For the largest part adverse possession is use by those who are powerless to procure themselves a decent land to reside in.
The question that arises here is, so if a squatter stays in an unused land for many years, is it still just to remove them,
If we continue to rationalize from the legal perspective and not grant advantage to those who are in dire need of it, will there still a scope for countries like India to advance?
Also, adverse possession can at times protect the possessor from future instances. In case, a land is occupy by a squatter for a good period of over 35 years and no suit was brought against him, it creates a sense of security in his capacity as owner. It was recognized in the 16th century that ‘Possession is nine-tenths the law’ and if today we say that although you have possessed it for a long time, but it is not yours, that is unfair to the person who was already at a disadvantage. And he must have been, because why else would he live in someone else’s owned property.
Adverse possession rewards those who make productive use of land and also serves to instill encourage rightful owners of land to take care to protect their interests. Overall, the idea of adverse possession is important because it ensures that the land is used efficiently. If a legal owner is not making use of the property and it is becoming deserted, someone willing should have the ability to take over the land and utilize it efficiently. This doctrine acknowledges the right of both owner and occupier by limiting the time period under the Limitation Act, 1963
The worldly affairs have made it abundantly clear that world is moving towards a capitalistic structure. Though in the earlier years’ socialism was heavily present, but as of today it has waned significantly.
Adverse possession generates a moral absurdity. Is it even moral, to grant somebody in need something that is otherwise lying idle but is not legally his? Or to allow those who legally have a right but do not even avail the use of the land to gain victory over the person who is in hardship and is nonetheless acting unlawfully.
Ethics is knowing the distinction between what you have a right to do and what is right to do. Consequently, is it right to ask an individual to give up their lawful property. Just because it is not being use by them? This is a legitimate right they gain through law and with respect to adverse possession. This is the same law that turns its back on them. Adverse possession is hostile possession by assertion of a hostile title in denial of the title of the true owner.
Adverse possession often brings preventable injury with it. It can diminish the utility by discouraging owners from letting others use their land. In such case, an intrinsic trust is create when an owner permits someone to use their land. If that very individual takes advantage of this trust and dominates. The land later on by adverse possession, it is violative of the principles that frame various laws.
Moreover, if squatters are grant by the law to own the land, why would people who hold such lands invest further in social welfare or philanthropic activities? If the law favors those already in need, the people capable of helping such disadvantageous people would abstain from doing so anymore.
Adverse possession further harms the people, who when the need arises. Plan to sell their lawful property, but due to a squatter occupying it. And their protection by adverse possession, are unable to do so? Often families do tend to invest in properties for their future or their forthcoming generations. Does the existence of adverse possession then in-between make it just?
The law refrains from depriving people of lands they have long occupied because doing so would cause them too much pain. “It is in the nature of a man’s mind.”
In India, there is a huge abyss amongst the income classes itself and those who have the medium. To attain a good life can often unwittingly be unsympathetic to those who cannot. Here it is our duty to ensure that such laws exist which can offer adequate support to them.
I respectfully disagree with the latest judgements that deemed it illogical and irrational. This does have a reasoning; it is just one that people deliberately ignore. It is factual that the concept must still exist to ensure a healthy society. Despite the problem of the rights and their extinguishment. There need to amendments made to confirm it is fairly utilize. Till the time there is no premeditated or malicious intent, there is no justification for adverse possession to be harmful.
In order to establish some harmony towards this unrest it would be beneficial. To inspect the limit set under the limitation law.
If this concept is eradicate, then what transpires to those lands and properties that would just lie. Vacant till the requirement for them arises years later. Though adverse possession is a boon but considering the principles of it, calls for the law to be retain. In addition to absolving the ambiguity of the concept. It will also provide a well needed uniformity to it as well. In today’s diverse needs and circumstances of people. The law on adverse possession remains in a judicial flux and requires a firm legislative standpoint. It is fundamental to acknowledge the various modern-day technicalities involved in every case. In order to incorporate such changes, it is evident. That India is in a dire need of a reformed judicial approach towards adverse possession.
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