Probate In India: Definition, Importance & Application

  Probate In India: Definition, Importance & Application                        @1                        A will  is a document that is drawn by a person with clear instructions as to how his/her assets are to be distributed on their death. In certain situations — and only in certain jurisdictions, such as Mumbai, Kolkota and Chennai — the executor of the will may need to apply for a probate in order to legalise it. This article will discuss, in detail, what a probate is, when one is needed in India, what the court fees are, and how it can be obtained. @2 What is a Probate? The Indian Succession Act, 1925 decrees that a probate is official proof of a will. A probate is issued to the executor, or the person who is authorized to implement or execute the will and thereby adds a legal character to the will. A probate, as defined in the India Sucessession Act, 1925, is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the

PLEA OF ADVERSE POSSESSION AND POSITION OF LAW UNDER ARTICLES 64 AND 65 OF THE LIMITATION ACT.


PLEA OF ADVERSE POSSESSION AND POSITION OF LAW UNDER ARTICLES 64 AND 65 OF THE LIMITATION AC
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HISTORICAL BACKGROUND:

The concept of adverse possession was born in England around 1275 and was initially created to allow a person to claim right of “seisin” from his ancestry. Many felt that the original law that relied on “seisin” was difficult to establish, and around 1623 a statute of limitation was put into place that allowed for a person in possession of property for twenty years or more to acquire title to that property. The concept of adverse possession was subsequently adopted in the United States. As a result, the time period to acquire land by adverse possession has been reduced in some States to as little as five years, while in others, it has remained as long as forty years. The United States has also changed the traditional doctrine by preventing the use of adverse possession against property held by a governmental entity. During he colonial period, prior to the enactment of the Bill of Rights, property was frequently taken by states from private land owners without compensation.
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INTRODUCTION:
Title means ownership and possession means a relationship between a person and a thing i.e. object i.e. corpus. The relationship is in view of the continuing exercise of exclusive control over a material object. This is called as a corporeal possession. Possession is a good title of right against anyone except who cannot show his better title. It is the general principle that title follows possession, but is not applicable in every case. Possession is prima facie proof of title.
          Possession may be defined as “dominion over, and exclusive control and use of a material object or property resulting from the fact of holding it ( whether rightly or wrongly) in one’s power. Possession is said to be the “nine-tenths of the law” and is a prima facie evidence of ownership-good against any other claim, except that the legal owner.” It may mature into legal ownership due to passage of time, as in adverse possession.
@3             The general principle of law is that, the law of Limitation bars the remedy, but does not extinguish the right itself. However, Sec. 27 of the Limitation Act is an exception to the general rule as regard to suit for possession. Section 27 of the Limitation Act needs a mention here. In departure from the normal rule that remedy is barred due to lapse of time but not the right, it provides “At the determination of the period hereby limited to any person for instituting the suit for possession of any property, his right to such property shall be extinguished.”
             It provides that, after determination of period of limitation to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. During pre-Independence period, There was a provision corresponding to section 27 of Limitation Act. However, it was not provided expressly that, right or title would be extinguished by expiry of the limitation period. The legal position as regards the acquisition of title to land by adverse possession has been succinctly stated by the Judicial Committee of the Privy Council in Perry -Vs- Clissold, reported in [(1907) AC 73]. It observed that, “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of statute of limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title.” This statement of law has been accepted by the Hon'ble Supreme Court of India in case of Nair Service Society Ltd. -Vs- K.C. Alexander reported in (AIR 1968 SC 1165).
@4           The concept of possession implies actual power over the object possessed and an apparent control over it – corpus possession is coupled with animus possidendi – that is, knowledge of these rights and the desire and intention of exercising them if need be. Possession in the eye of law consists of the fact of physical occupation and the mental element of holding the subject of possession to the exclusion of others.
The owner is said to be in possession of it when he can exclude everyone else from entering upon it, when he can go upon it whenever he likes and use it in whatever manner is permissible. Possession is a substantive right or interest carrying with it legal incidents and advantages apart from the owner's title. It is a heritable and transferable right. When a person is in possession he can, as a defendant, resist a claimant who cannot show a better title. On the ground of his possession a person can seek relief by way of injunction. When while in possession he has been wrongfully ousted by another he can sue to recover possession from the wrong doer. Possession is presumptive evidence of title. It is prima facie evidence of title against all but the true owner, as in District Board Salem Vs. Hanumantha Rao reported in AIR 1954 Mad. 508.
@5     Under the present Limitation Act, 1963, all suits for possessions of immovable property have been brought under two categories namely;
1. Suits based on the right to claim possession based on previous possession and not on proprietary title;
2. The suits based on proprietary title.
The suits under Article 64 must be brought within 12 years from the date of dispossession. As such for applicability of Article of the Act, the prime requirement is that the plaintiff should be dispossessed, or should discontinue possession.
Initially the constitution of India has ensured right to property as a fundamental right to every citizen of India. With change in time, right to property was made as a constitutional right and thus, an important right exists in every citizen of India. It is trite position of law that, every person who claims his right over any property must establish his lawful nexus with said property. However, Doctrine of Adverse possession, is an exception to this rule, wherein person raising plea of adverse possession, has no lawful nexus with the property, but, his right is recognised on basis of certain qualifying conditions.
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SECTION 27 OF THE LIMITATION ACT:
Article 64 as well as Article 65 shall have be read with Section 27 of the Limitation Act titled as – “Extinguishment of right to property” which reads as: “At the determination of the period hereby limited to any person for instituting the suit for possession of any property, his right to such property shall be extinguished.” That means, where a cause of action exists to file a suit for possession and if the suit is not filed within the period of limitation prescribed, then, not only the period of limitation comes to an end, but the right based on title or possession, as the case may be, will be extinguished. This provision is to assist the person in possession to acquire prescriptive title by adverse possession.
Section 27 is an exception to the well accepted rule that limitation bars only the remedy and does not extinguish the title. It lays down a rule of substantive law by declaring that after the lapse of period, the title ceases to exist and not merely the remedy, as in Valliamma Champaka -vs- Sivathanu Pillai reported in (1964) 1 MLJ, 161 (FB). It means that since the person who had a right to possession has allowed his right to be extinguished by his inaction, he cannot recover the property from the person in adverse possession and as a necessary corollary thereto, the person in adverse possession is enabled to hold on to his possession as against the owner not in possession.
The Hon'ble Supreme Court has held in Krishnamurthy S, Sethur V. O.V. Narasimha Setty and others reported in (AIR 2007 SC 1788) that Section 27 of the Limitation Act, 1963 operates to extinguish the right to property of a person who does not sue for its possession within the time allowed by law. The right extinguished is the right which the lawful owner has and against whom a claim for adverse possession is made, therefore, the plaintiff who makes a claim for adverse possession has to plead and prove the date on and from which he claims to be in exclusive, continuous and undisturbed possession.
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                  The question whether, possession, is adverse or not is often one of simple fact, but it may also be a conclusion of law or a mixed question of law and fact. The facts found must be accepted but the conclusion drawn from them, namely, ouster or adverse possession is a question of law and has to be considered by the court.
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POSITION OF ARTICLE 64 AND 65:
ARTICLE 64:
The principle of law is firmly established that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In the old Limitation Act, 1908, as per the provisions of section 142 and 144, whether the suit was based on title or not, the burden of proof was always lay on the plaintiff, who had to prove that he was in possession of the property within 12 years of the suit. However, in the new Limitation Act, 1963 said situation has been modified and in the suit based on title, as per article 65, the burden of proof squarely on the defendant to show when his possession becomes adverse to the plaintiff. This improvement conferred better rights on a person who claims to have title to the property, partially diluting stern face of the law of adverse possession.
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           Section 5 of the Specific Relief Act, 1963 provides that a person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure that is by filing of the suit of for recovery of the possession. In such a suit plaintiff must establish his title and such a suit will govern by Article 65. On the other hand section 6 of the said Act provides that if any person is dispossessed without his consent of the immovable property otherwise than in due course of law, he may recover possession thereof by filing suit for possession. Section 6 has nothing to do with title. Plaintiff's previous possession will be sufficient in such a suit. Section 6 is enabling provision. The section does not compel such dispossessed person to sue under section 6. He is not precluded from seeking any other remedy under the provisions of any other law.
The claim to rights and interests in relation to property on the basis of possession has been recognized. Uninterrupted and uncontested possession for a specified period, hostile to the rights and interests of true owner is considered to be one of the legally recognized modes of acquisition of ownership. The prescription of periods of limitation for recovering possession or for negation of the rights and interests of true owner is the core and essence of the law of adverse possession. Right to access to courts is barred by law on effluxion of prescribed time.
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         Article 64 and 65 constitute independent provisions relating to suits for possession brought under different situations. They do not overlap notwithstanding that both provide a period of 12 years limitation. They stand distinguished from each other in number of respects. Articles 64 governs suits for possession based on previous possession and not in title. Article 65 controls suits for possession based on title. Under Article 64, the burden lies on plaintiff to prove his former possession and subsequent dispossession within 12 years prior to the suit and it is unnecessary to inquire whether the defendant's possession was adverse or when it becomes adverse to the plaintiff.
Under Article 65, the burden lies on the defendant to show that he or his predecessor - in - interest had been in continuous adverse possession for over 12 years. Under Article 64, the nature of plaintiff's possession is not material. Under Article 65 however, only possession adverse to the plaintiff is relevant. Article 65 specifically refers to “immovable property or any interest therein” whereas, Article 64 mentions only “immovable property” affording room for argument that interest in immovable property stands outside the scope of that article. Finally, while the starting point of limitation under Article 64 is the date of dispossession, under Article 65 - it is the date when the possession of the defendant became adverse to the plaintiff. The suit under Article 64 must be one for possession. The Article governs suit for possession of immovable property based on previous possession and not on the title. To attract the Article 64, the plaintiff must initially have been in possession of the property and should have been dispossessed by the defendant or some one through whom the defendant claims.
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           The Hon'ble Supreme Court of India held in the case of Karnataka Board of Wakf Vs.GOI, (2004) 10 SCC 799 (in the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes Possession of the property and asserts rights over it and the person having title omits or neglects to take legal action against such person for years together( emphasis supplied). “The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner”. essential requisites to establish adverse possession are that the possession of the adverse possessor must be neither by force nor by stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that the possession is adverse to the paper owner.
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ARTICLE 65:
The law on adverse possession is contained in the Indian Limitation Act. Article 65, Schedule I of The Limitation Act. It prescribes a limitation of 12 years for a suit for possession of immovable property or any interest therein based on title. It is important to note that the starting point of limitation of 12 years is counted from the point of time “when the possession of the defendants becomes adverse to the plaintiff”. Article 65 is an independent Article applicable to all suits for possession of immovable property based on title i.e., proprietary title as distinct from possessory title.
                   Adverse possession, is the possession of property by a person which is adverse to every other person having, or claiming to have a right of possession by virtue of a different title. The law of prescriptive rights is best summed up by the Brocard, 'nec vi, nec clam, nec precario, indicating the acquisition of a right by prescription must be in circumstances that exclude 'force, stealth or licence'. A prescriptive right is essentially one that is created by uncontested assertion of the right for a given period of time. The principle is based in many ways on a sort of estoppel in rem.
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INGREDIENTS FOR ADVERSE POSSESSION:
The intention to exclude others from the control of property is an essential element of factual possession. The intention to possess the property exclusively implies the intention to exclude all others including the true owner whether known or unknown to the adverse possessor. The possession contemplated by Article 65 is the settled possession, 
which means i) effective,
 ii) continuous and 
iii) to the knowledge of the owner or without any attempt of concealment by the possessor.
The concept of adverse possession contemplates a hostile possession i.e. the possession which is expressly or impliedly in denial of the title of the true owner to the knowledge of the true owner and claiming the title as an owner in himself by the person claiming to be in adverse possession. In other words such hostile possession shall not be secret and person in adverse possession must not acknowledge the title of the true owner but has to deny the title of the true owner. The adverse possession must be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action. This shows that the possession must be nec vi nec clam nec precario i.e. in continuity, in publicity and in extent. This shows that permissive possession is not hostile possession.
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       In the case of Namdeo Karbhari v. Chababu @ Chahadu reported in 2006(1) Mh.L.J.878 the principles in regard to the plea of ownership by adverse possession, laid down in the case of D.N.Venkatarayappa & anr v. State of Karnataka & anr reported in (1997) 7 SCC 567 are reproduced as under:
(a) The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.
(b) Apart from the actual and continuous possession which are among other ingredients of adverse possession, there should be necessary animus on the part of the person who intends to perfect title by adverse possession.
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(c) One of the important ingredient to claim adverse possession is that the person who claims adverse possession must have set up title hostile to the title of the true owner.
Once adverse possession is proved by the person despite by wrong means, the true owner loses his right over the land/property. A person can prove adverse possession if the possession is:
ACTUAL:
Adverse possession consists of actual occupation of the land with the intent to keep it solely for oneself. Merely claiming the land or paying taxes on it, without actually possession it, is insufficient. Entry on the land, whether legal or not, is essential. A trespass may commence adverse possession, but there must be more than temporary use of the property by a trespasser for adverse possession to be established. Physical acts must show that the possessor is exercising the dominion over the land that an average owner of similar property would exercise. Ordinary use of the property – for example, planting and harvesting crops or cutting and selling timber – indicates actual possession. In some states acts that constitute actual possession are found in statute.
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OPEN AND NOTORIOUS:
An adverse possessor must possess land openly for the entire world to see, as a true owner would. Secretly occupying another's lands does not give the occupant any legal rights. Clearing, fencing, cultivating, or improving the land demonstrates open and notorious possession, while actual residence on the land is the most open and notorious possession of all. The owner must have actual knowledge of the adverse use, or the claimant's possession must be so notorious that it is generally known by the public or the people in the neighbourhood. The notoriety of the possession puts the owner on notice that the land will be lost unless he or she seeks to recover possession of it withing a certain time.
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EXCLUSIVE:
Adverse possession will not ripen into title unless the claimant has had exclusive possession of the land. Exclusive possession means sole physical occupancy. The claimant must hold the property as his or her own, in opposition to the claims of all others. Physical improvement of the land, as by the construction of fences or houses, is evidence of exclusive possession.
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HOSTILE:
Possession must be hostile, sometimes called adverse, if title is to mature from adverse possession. Hostile possession means that the claimant must occupy the land in opposition to the true owner's right. One type of hostile possession occurs when the claimant enters and remains on land under color of title. Color of title is the appearance of title as a result of a deed that seems by its language to give the claimant valid title but, in fact, does not because some aspect of it is defective. If a person, for example, was suffering from a legal disability at the time he or she executed a deed, the grantee-claimant does not receive actual title. But the grantee-claimant does have color of title because it would appear to anyone reading the deed that good title had been conveyed. If a claimant possesses the land in the manner required by law for the full statutory period, his or her color of title will become actual title as result of adverse possession.
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CONTINUOUS AND UNINTERRUPTED:
All elements of adverse possession must be met at all times through the statutory period in order for a claim to be successful. The statutory period, or “statute of limitations”, is the amount of time the claimant must hold the land in order to successfully claim “adverse possession”.
The plea of adverse possession is not a pure question of law but a blended one of facts and law. Therefore, a person who claims adverse possession should show:-
A] On what date he came into possession.
B] What was the nature of his possession.
C] Whether the factum of possession was known to the other party,
D] How long his possession has continued, and
E] His possession was open and undisturbed.
Adverse possession is the word which implies that, it must be actual possession of another’s land with intention to hold it and claim it. It must commence with the wrongful dispossession of the rightful owner at some particular time; it must commence in wrong and must be maintained against right. It must be actual, open, notorious, hostile, under claim of right, continuous and exclusive and maintained for the statutory period.
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MERE POSSESSION AND LONG POSSESSION – NO ADVERSE POSSESSION:
In the case of Annakili v. A. Vedanayagam reported in AIR 2008 SC 346: Claim by adverse possession has two elements : (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years o even for 100 years is not adverse possession without anything more do not ripen into a title.
In the case of Ganpat Janu Wagh v. Vanmala Rambhau Sanap, reported in 2014(4) Mh.L.J. 308, it has been held that, non-user of property by the owner even for a long time would not effect title of the owner unless claimant to adverse possession has asserted hostile title in denial of title of true owner peacefully, openly, continuously a period of 12 years or more.
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PRINCIPLE OF TACKING:
Constitution Bench of the Supreme Court has held in case of Gurbinder Singh & another Vs. Lal Singh & another reported in AIR 1965 SC 1553, to tack means “to fasten”, “to stitch together”, “to annex” or “to append”. In view of the principle of tacking if someone derives a title from a person in adverse possession he can tack the period of adverse possession enjoyed by earlier person so as to complete his title as an owner by adverse possession for a total period of 12 years. Thus, a person can usefully claim for the purpose of his adverse possession even the adverse possession of his predecessor from whom he derives right. However, a trespasser cannot tack adverse possession of earlier trespasser, since second trespasser does not derive possession from earlier trespasser.
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IMPORTANT JUDICIAL DICTUM:
Kshitish Chandra Bose -Vs- Commissioner of Ranchi,
AIR 1981- SC- 707:
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.” It was also clarified in a series of decisions that while possession shall be open and exclusive and in assertion of one’s own right, fact that the possessor did not know who the real owner was, will not make his possession any the less adverse.
Vidya Devi alias Vidya Vati -Vs- Prem Prakash & Ors.,
AIR 1995 SC 1789,
Hon' Apex Court held in Para 21 and 22 as under:-
21. The legislature has not prescribed any period of limitation for filing a suit for partition because partition is an incident attached to the property and there is always a running cause of action for seeking partition by one of the co-sharers if and when he decides not to keep his share joint with other co-sharers. Since the filing of the suit is wholly dependent upon the will of the co-sharer, the period of limitation, specially the date or time from which such period would commence, could not have been possibly provided for by the legislature and, therefore, in this Act also a period of limitation, so far as suits for partition are concerned, has not been prescribed. This, however, does not mean that a co-sharer who is arrayed as a defendant in the suit cannot raise the plea of adverse possession against the co-sharer who has come before the Court as a plaintiff seeking partition of his share in the joint property.
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22. Normally, where the property is joint, co-sharers are the representatives of each another. The co-sharer who might be in possession of the joint property shall be deemed to be in possession on behalf of all the co-sharers. As such, it would be difficult to raise the plea of adverse possession by one co-sharer against the other. But if the co-sharer or the joint owner had been professing hostile title as against other co-sharers openly and to the knowledge of other joint owners, he can, provided the hostile title or possession has continued uninterruptedly for the whole period prescribed for recovery of possession, legitimately acquire title by adverse possession and can plead such title in defence to claim for partition.”
Karnataka Board of Wakf Vs. GOI, (2004) 10 SCC 799:
In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes Possession of the property and asserts rights over it and the person having title omits or neglects to take legal action against such person for years together. “The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner”. essential requisites to establish adverse possession are that the possession of the adverse possessor must be neither by force nor by stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that the possession is adverse to the paper owner.
Amrendra Pratap Singh -Vs- Tej Bahadur Prajapati, 2004 (10) SCC 65:
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The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner.
P. T. Munichikkanna Reddy v.Revamma, AIR 2007 SC 1753:
Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. There should be the ‘intention to possess’ and ‘intention to dispossess’ as both these concepts are correlative to each other. The animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow. However the ignorance of the owner will not prevent the accrual of a title by prescription. The possession must be open and hostile enough to be capable of being known by the parties interested in the property.
Hemaji Waghaji vs. Bhikhabhai Khengarbhai, AIR 2009 SC 103:
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        The Hon'ble Supreme Court observed that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. It is also observed as:
Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.
We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to loose its possession only because of his inaction in taking back the possession within limitation.
In our considered view, there is an urgent need of fresh look regarding the law on adverse possession. We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law.”

PLEA OF ADVERSE POSSESSION AND POSITION OF LAW UNDER ARTICLES 64 AND 65 OF THE LIMITATION ACT.


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State of Haryana Vs. Mukesh Kumar, 2011(10) SCC 404:
The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken passion of the property of the true owner. The law ought not to benefit a person who in clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. The position of legitimizing possession of a rank trespasser and compelling the owner to lose its possession only because of his inaction in taking back the possession within limitation is denied. It is opined that there is an urgent need of fresh look regarding the law on adverse possession and further recommended the Union of India to seriously consider and make suitable changes in the law of adverse possession.
Gurdwara Sahib v/s Gram Panchayat village Srithala and another, decided on 16 September, 2013 (CIVIL APPEAL NO. 8244/2013)
The Hon'ble Supreme Court held that, Specific Relief Act sec. 34 and Limitation Act sec. 27 and articles 64 to 66 – Adverse possession- no declaration of title can be sought on the basis of adverse possession- even if the plaintiff is found to be in adverse possession it cannot seek a declaration to the effect that such adverse possession has matured into ownership- only if proceeding are filed against person found in adverse possession he can use his adverse possession as a shield/defence.
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CONCLUSION:
Adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and wilful neglect but also on account of possessor's positive intent to dispossess. The entire concept of adverse possession, its origin, growth and its application in the present days where right to property is considered at par with human right, it appears that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and totally disproportionate. Therefore, it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper-owner of the property. When the title of plaintiff was challenged he came to the Civil Court and suit must be held to be covered by Article 65 of Limitation Act, when it is a suit for recovery of possession based on title. Once a period of limitation starts to run against plaintiff suing under Article 64 or 65 of Limitation Act, 1963 the subsequent institution of the suit against the plaintiff will not arrest the running of time. Continued illegal possession ripens into a legally enforceable right only after prescribed period of time has elapsed.
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