9911796707
TMI Blog2011 (9) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... have heard the Learned Counsel for the State of Haryana. We do not deem it appropriate to financially burden the Respondents by issuing notice in this Special Leave Petition. A very vital question which arises for consideration in this petition is whether the State, which is in charge of protection of life, liberty and property of the people can be permitted to grab the land and property of its own citizens under the banner of the plea of adverse possession? 5. Brief facts, relevant to dispose of this Special Leave Petition are recapitulated as under: 6. The State of Haryana had filed a Civil Suit through the Superintendent of Police, Gurgaon, seeking a relief of declaration to the effect that it has acquired the rights of ownership by way of adverse possession over land measuring 8 biswas comprising khewat No. 34, khata No. 56, khasra No. 3673/452 situated in the revenue estate of Hidayatpur Chhavni, Haryana. 7. The other prayer in the suit was that the sale deed dated 26th March, 1990, mutation No. 3690 dated 22nd November, 1990 as well as judgment and decree dated 19th May, 1992, passed in Civil Suit No. 368 dated 9th March, 1991 are liable to be set aside. As a conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws that the Defendants are the owners in possession of disputed property. The Trial Court observed that possession of State, as claimed in the plaint for a continuous period of 55 years, stood falsified by the documents issued by the officials of the State. 11. The Trial Court also observed that despite claiming adverse possession, there was no pleading qua denial of title of the Defendants by the Plaintiff, so much so that the specific day when the alleged possession of State allegedly became adverse against the Defendants has not been mentioned in order to establish the starting point of limitation could be ascertained. 12. The Trial Court relied on the judgment of this Court in S.M. Karim v. Mst. Bibi Sakina AIR 1964 SC 1254 wherein this Court has laid down that the adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse. The Court also held that long possession is not necessarily adverse possession. 13. The Trial Court also relied on a decision of the High Court of Punjab and Haryana in the case of Bhim Singh and Ors. v. Zile Singh and Ors. AIR 2006 P H 195, wherein it was st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khasa No. 3673/452 situated in revenue estate of Hidayatpur Chhavni village now the part of known as Patel Nagar, Gurgaon. Decree sheet be drawn accordingly. File be consigned to the record room after due compliance. 20. The Plaintiff, aggrieved by the judgment of the Trial Court filed an appeal (Civil Appeal No. 33) before the learned Additional District Judge, Gurgaon. Learned Additional District Judge while deciding the appeal, relied on the judgment of the Punjab Haryana High Court delivered in the case of Food Corporation of India and Anr. v. Dayal Singh 1991 PLJ 425, wherein it was observed that it does not behove the Government to take the plea of adverse possession against the citizens. 21. Learned Additional District Judge also relied on other judgments of Punjab Haryana High Court in the cases of Bhim Singh and Ors. (supra) and Kanak Ram and Ors. v. Chanan Singh and Ors. (2007) 146 PLR 498 wherein it was held that a person in adverse possession of immovable property cannot file a suit for declaration claiming ownership and such a suit was not maintainable. 22. Before parting with the judgment the learned Additional District Judge observed regarding conduct o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pring 2007 with the title 'Making Sense Out of Nonsense: A Response to Adverse Possession by Governmental Entities'. The Article was written by Andrew Dickal. Historical background of adverse possession was discussed in that article. Historical background 30. 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 statue of limitations was put into place that allowed for a person in possession of property for twenty years or more to acquire title to that property. This early English doctrine was designed to prevent legal disputes over property rights that were time consuming and costly. The doctrine was also created to prevent the waste of land by forcing owners to monitor their property or suffer the consequence of losing title. 31. The concept of adverse possession was subsequently adopted in the United States. The doctrine was especially important in early American periods to cure the growing number of title disputes. The American version mirrored the English law, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined the legal position in various countries particularly in English and American systems. We deem it appropriate to reproduce relevant passages in extenso. The Court dealing with adverse possession in paras 5 and 6 observed as under: (SCC pp. 66-67) 5. 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. (See Downing v. Bird 100 So 2d 57 Fla 1958, Arkansas Commemorative Commission v. City of Little Rock 227 Ark 1085 ; 303 SW 2d 569 (1957); Monnot v. Murphy 207 NY 240 ; (1913)100 NE 742 ; City of Rock Springs v. Sturm 39 Wyo 494 ; 273 P 908 ;(1929) 97 ALR 1 .) 6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso a human right. Human rights have already been considered in realm of individual rights such as right to health, right to livelihood, right to shelter and employment etc. But now human rights are gaining a multi faceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context. 37. The changing attitude of the English Courts is quite visible from the judgment of Beaulane Properties Ltd. v. Palmer (2005) 3 WLR 554. The Court here tried to read the human rights position in the context of adverse possession. But what is commendable is that the dimension of human rights have widened so much that now property dispute issues are also being raised within the contours of human rights. With the expanding jurisprudence of the European Courts of Human Rights, the Court has taken an unkind view to the concept of adverse possession. 38. Paragraphs from 26 to 29 of Hemaji Waghaji Jat (supra) are set out as under: 26. With the expanding jurisprudence of the European Court of Human Rights, the Court has taken an unkind view to the concept of adverse possession in the recent judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paras 51-52) 51. Thereafter the applicants moved the European Commission of Human Rights (ECHR) alleging that the United Kingdom law on adverse possession, by which they lost land to a neighbour, operated in violation of Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms ('the Convention'). 52. It was contended by the applicants that they had been deprived of their land by the operation of the domestic law on adverse possession which is in contravention with Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms ('the Convention'), which reads as under: 'Every natural or legal person is entitled to the peaceful enjoyment of his possession. No one shall be deprived of his possession except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion 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. 33. We fail to comprehend why the law should place premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation. Fifth Amendment of the U.S. Constitution a principle of a civilized society 40. Another important development in the protection of property rights was the Fifth Amendment. James Madison was the drafter and key supporter for the Fifth Amendment. The Fifth Amendment states: nor shall private property be taken for public use, without just compensation . The main issue is to pay just compensation for acquiring the property. There are primarily two situations when a landowner may obtain compensation for land officially transferred to or depreciated by the government. First, an owner may be entitled to compensation when a governmental entity intentionally acquires private property thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oosing from within a set range of rates so as to tailor the compensation to the equities of a given case. 43. The Parliament must seriously consider at least to abolish bad faith adverse possession, i.e., adverse possession achieved through intentional trespassing. Actually believing it to be their own could receive title through adverse possession sends a wrong signal to the society at large. Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief. 44. In case, the Parliament decides to retain the law of adverse possession, the Parliament might simply require adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12. Such an extension would help to ensure that successful claimants have lived on the land for generations, and are therefore less likely to be individually culpable for the trespass (although their forebears might). A longer statutory period would also decrease the frequency of adverse possession suits and ensure that only those claimants most intimately connected with the land acquire it, while only the most passive ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
