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.
In India, the Limitation Act, 1963 is the legislation that governs the period within which suits are to be filed, with relevant provisions for delay, condonation thereof etc. The principle that pervades statutes of limitation at common law is that ‘limitation extinguishes the remedy, but not the right’ (See Venkatrama Aiyar J. in Bombay Dyeing v. State of Bombay AIR 1958 SC 328), this means that the legal right itself is not defeated, but only the right to claim it in a court of law is extinguished (This might sound technical, but assumes relevance in the context of cross-claims, set-off, etc.). [See, pg. 10, 193rd Report, Law Commission of India]
An exception to this general rule is the law of prescriptive rights, whereby the right itself is destroyed. Section 27 of the limitation Act, 1963 proclaims:
Section 27: Extinguishment of Right to Property
At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
This provision, when read with Articles 64 and 65 of the Schedule to the Limitation Act, 1963 establishes the law of adverse possession as it stands in India today. These two Articles both prescribe a period of twelve years within which the right to claim a particular property is extinguished, but the two differ in so far as the date on which such period of limitation begins to run.
Article 64 deals with cases where the dispute is over possession not necessarily based title, and in such cases the period of limitation runs from the time when the plaintiff was dispossessed of the property.
Article 65 deals with cases where the dispute is over title as such also, and in such cases the period of limitation runs from the time when the defendant becomes adverse to that of plaintiff.
The distinction between the two might seem almost semantical at first blush, but on further analysis, especially by placing the twin provisions in contradistinction to Articles 142 and 144 of the old Limitation Act, 1908, we see an extremely significant distinction emerge through. In the old Act, whether the alleged possessory right was based on title or not, the burden of proof always lay on the plaintiff, who had to prove that he was in possession of the property within 12 years of the suit. However, the new Act, pursuant to the recommendations of the First Law Commission (in its 3rd Report, 1956), has modified this to benefit plaintiff’s suits based on title. Article 65, in such cases lays the burden of proof (that the claim is barred by limitation) squarely on the defendant, in cases where the plaintiff bases his suit on title. [Illustrative in this regard is Jagamohan Garnaik v. Sankar Samal AIR 1990 Ori 124 Clearly, this is an improvement and confers a better bundle of rights on a person who claims to have title to the property, partially diluting the otherwise stern face of the law of adverse possession.
In conclusion, one must note that the law of adverse possession is no longer what it used to be, a tool of a powerful squatter buttressed by the lack of awareness on part of the true owner and an ancient law. Today, the law of adverse possession is viewed with great circumspection by the judiciary, and this is a trend that commenced abroad. With the recognition of property as a human right of sorts by the European Court of Human Rights [See Beyeler v. Italy (2000)], we see the classical conception of the law of adverse possession changing slowly but surely. There, the ECHR held:
“The question nevertheless remains whether, even having regard to the lack of care and inadvertence on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorised possession struck a fair balance with any legitimate public interest served.”
This view seems to not have curried much favour with the House of Lords, evidenced by their decision in Pye v. Graham (2003) 1 AC 419, but nevertheless the Indian courts, and Justice Bhandari in particular seem bent on changing the law as it stands. In his decision in the case of Hemaji Waghaji Jat v. Bhikabhai Harijan (2008), he had stated:
“…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.”
He reiterated this view in his recent pronouncement in State of Haryana v. Mukesh Kumar (2011), this time going further and stating that “The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change. If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country.”
No doubt, the law of adverse possession based as it is on rather archaic constructions of the right to property itself, needs to be revisited and revised. Until then, the fifty year old Limitation Act plods on. With changed notions of economic policy, in fact, it is interesting that the State continues with the law that it should have done away with years ago. Nevertheless, with a Supreme Court keen to reform the law in this regard, recourse is not far.