[ecis2016.org] In a democratic polity governed by the rule of law, the state cannot deprive citizens of their property without the sanction of law, the Supreme Court has held
The Supreme Court, on January 8, 2020, ruled that to forcibly dispossess citizens of their private property, without following the due process of law, would be to violate a human right, as also the constitutional right under Article 300A of the Constitution. A bench of justices Indu Malhotra and Ajay Rastogi, in its verdict said: “In a democratic polity governed by the rule of law, the state could not have deprived a citizen of their property without the sanction of law.” The bench referred to an earlier verdict, to say it has been held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right.
“The state being a welfare state, cannot be permitted to take the plea of adverse possession, which allows a trespasser, i.e., a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years,” it said. The bench added that the state cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession ‘to grab the property of its own citizens, as has been done in the present case’. It said the state cannot dispossess a citizen of his property except in accordance with the procedure established by law.
The court made the observation, while directing the Himachal Pradesh government to pay compensation to an illiterate widow in eight weeks, with all statutory benefits, whose land it had acquired in 1967-68 for the construction of a road between Nadaun-Sujanpur Road in Hamir Pur district without following the acquisition proceedings. The bench also deprecated the state for claiming adverse possession, as it had been in continuous possession of the land for over 42 years.
Adverse possession: Person thrown out by the original owner can file suit to reclaim property, says SC
The SC has held that a person who has acquired the right over a property as it was in his possession for 12 years, can file a suit to reclaim it, in case of forced dispossession by the original owner or any other party
August 9, 2019: A Supreme Court bench of justices Arun Mishra, S Abdul Nazeer and MR Shah, held that a person, who is not a title holder (original owner) but gets the right over the property under the doctrine of ‘adverse possession’, is empowered to file lawsuits to reclaim possession, in case he is dispossessed by others. The top court referred to the doctrine of adverse possession, under which a person who is not the original owner becomes the owner, because of the fact that he has been in possession of the property for a minimum of 12 years, within which the real owner did not seek legal recourse to oust him. “We hold that a person in possession cannot be ousted by another person, except by due procedure of law and once 12 years’ period of adverse possession is over, even owner’s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/ owner, as the case may be, against whom he has prescribed,” the bench said.
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It said that the consequence of the ruling is that “Once the right, title or interest is acquired it can be used as a sword by the plaintiff, as well as a shield by the defendant within Article 65 of the Limitation Act (law which deals with maintainability of law suit on the basis of time limit) and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession.” The top court held that in case of dispossession by another person, by taking the law in his hand, a possessory suit can be maintained under the law, even before the ripening of title by way of adverse possession.
It said: “By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner, after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff, having perfected title by way of adverse possession, can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession.”
The top court’s ruling came, while answering a legal question of whether a person claiming the title by virtue of adverse possession, can maintain a lawsuit under the law for declaration of title. It held that the same may not be the case, with land or property meant for public use, as there are instances when such properties are encroached upon and then a plea of adverse possession is raised. “In such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences. Hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession,” the bench said.
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