Adverse Possession

Adverse possession of the land is the process by which title to another's land is acquired without his permission. Adverse Possession is a possession which is opposed to once interest of the real owner of the property. It is possession in denial of the title of the true owner. According to Supreme Court of India, "The law as it exists is extremely harsh for the true owners and a windfall for a dishonest person who had illegally taken possession of the property of the true owner."  In layman language it is called "land grabbing." Roots of this type of land grabbing lies in the national policy called "Land to the Tiller". Although the aim of the policy was to abolish of intermediaries between the tiller and Government, some dishonest person used this policy as a license to grab the other person's land.

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;

 

1.       Actual and exclusive under the claim of right,

2.       Visible to everybody,

3.       Hostile,

4.       Peaceful,

5.       Known to the true owner

6.   and continuous for the statutory period,

 

A statutory period of 12 years is prescribed under the Limitation Act, 1963. Within this period the owner of the property who is dispossessed is require to institute a suit for possession of the said property. On failure to do so, true owner loses his right over land.

  

However in September 2008, while dismissing an appeal filed by a person who had illegally taken possession of a land from its original owner, Supreme Court asked " how the law could place a premium on dishonesty by legitimizing possession of a trespasser and compelling the real owner to lose his title simply because the owner has not taken back his house or land within a stipulated time." the court further said that,

 

"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,” said the Bench rushing a copy of its judgment to the law ministry and legislative department for appropriate steps in accordance with law.

 

Adverse Possession and Maharashtra:

Protection to the person who has taken illegal possession is given in land related laws of     Maharashtra. They are as follows.

Protection to the person who has illegally taken possession is given in the Rule 31 of Maharashtra Land Revenue Record of Rights and Registers (Preparation and Maintenance) Rules, 1971 the rule state that,

Register of persons in possession other than the persons deemed to be in possession according to the Record of Rights:

 

During course of inspection of crops under Rule 30, the Talathi shall verify whether the person in actual possession of a survey number or sub-division of a survey number is the one whose name is recorded in the record of rights. If the Talathi finds that the person in actual possession is other than the persons who according to the entries in the record of rights is entitled to cultivate the land, he shall enter his name in the register of persons in possession other than the persons who should have been in possession of the land according to the record of rights. The register shall be in Form XIV. (Village Form VII-B)  As soon as may be practicable after any entries are made in the register, the Talathi shall forward the relevant extract thereof to the Tahsildar for necessary action.

On receipt of the register in Form XIV, (Village Form VII-B) under sub-rule (1), the Tahsildar shall visit the village for making necessary enquiries about the possession of the land by the persons mentioned in the said register. He shall give prior intimation of the date and time of his visit to the Talathi and the Sarpanch of the village panchayat if any, at least seven days in advance. The Talathi shall arrange to inform all the interested persons of the Tahsildar’s visit and shall call upon them to remain present in the village Chavdi [along with their Khate Pustika] at the appointed date and time.

On the appointed date and time, the Tahsildar shall hear the persons interested and after holding further enquiry as he deems necessary decide the matter. [After the resultant entries are made in the record, he shall cause necessary entries to be made in the relevant Khate Pustika]

The entry in the Village Form VII-B satisfies all conditions in the column 1) to 6) mentioned above. After the period of 12 years, a person can apply to the Tahasildar to legalize his possession. Once it legalized he can be declare as a deemed tenant under section 4 of Bombay Tenancy and Agricultural Lands Act, 1948. Section 4 states that,

 

Persons to be deemed tenants:– A  person lawfully cultivating any land belonging to another persons shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not,

 

(a)         a member of the owner’s family, or

(b)         a servant on wages payable in cash or kind but not in crop share or a hired   labourer cultivating the land under the personal supervision of the owner or any member of the owner’s family, or

(c)          a mortgagee in possession.

 

If the possessor is satisfying all conditions mentioned above, he is eligible to apply to the Tahasildar under Section 70 (B) of the above act. The Tahasildar is empowered to decide whether a person is, or was at any time in the past, a tenant or a protected tenant or a permanent tenant.

Once a person is declared as a tenant he is eligible to purchase land under section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948.

During the course of time for better job employment land owner started migrating from under develop area to develop area leaving their right over land unprotected. Such lands are gone into possession of local residents of the village for cultivation. Landowner’s absence gave them peaceful, open and continuous possession. Their entry in the “village form” created proof of possession. With the result landowners lost their right over land.

 

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