Supreme Court on Adverse Possession

In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & Others (Available at http://www.judis.nic.in/) the Supreme Court has held:

"[W]e 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 the of 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.
35. 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.

36. In our considered view, there is an urgent need of fresh look regarding the law on adverse possession."

The facts (as the District Court has found) are that the Defendant was is possession of the land in issue from 1925. In 1960 the land was forcibly taken in possession by the Plaintiff. Since he was in continuous possession of the land, by virtue of the law of adverse possession, he became the owner of the land. He filed a suit for declaration that he was the rightful owner of the peroperty and for preventing the Defendant from entering into his property.

The Trial Court upheld his contention but was rejected in the District Court as well as the High Court. He went on appeal to the Supreme Court. The Supreme Court dismissed his appeal with costs.

This judgement is noteworthy because:

1. It discusses in detail the law relating to adverse possession and is critical of the injustice and arbitrariness caused
2. Reference to the decisions of European Court of Human Rights on the Right to Property and the English Courts wherein such Courts have tried to criticise adverse possession from a human rights perspective (the English decision was reversed by the House of Lords)
3. The Supreme Court also held: "There is another aspect of the matter, which needs to be carefully comprehended. According to Revamma's case, the right of property is now considered to be not only a constitutional or statutory right but also a human right. In the said case, this Court observed that "Human rights have been historically considered in the 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 multifaceted 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." This is surprising because right to health and livelhood are considered to be a part of Article 21 of the Constitution. Has the Supreme Court has tried to put the right to property on par with these Article 21 rights?
4. Finally, the Court held: "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."