THE VIEUX JEU ADVERSE POSSESSION: A RE-LOOK INTO THE ARCHAIC DOCTRINE
Author: Adv. Ayush Mishra, Advocate, Allahabad High Court and Alumnus of the NALSAR University of Law, Hyderabad, India
Laws across the globe have continuously evolved to keep up with the modern sensibilities and developing moralities of the people. The Supreme Court of India has also, in recent times, stuck down various medieval remedies that proliferated our parliamentary legislations. This has been done within the four corners of constitutional morality and the court’s commitment to transformative constitutionalism. Such a progressive approach allows researchers to highlight other ignored antiquated laws that have still not come under challenge in the higher courts. This paper is precisely such an attempt to examine how the foundational arguments in favour of the Doctrine of Adverse Possession have weakened over time and that it does not conform to the modern tenets of developing rights-based jurisprudence. The paper analyses the doctrine of adverse possession as laid down in the Indian Limitation Act, 1963 and caters to the concerns therein. It further transcends the jurisdiction borders and examines the doctrine of adverse possession as it stands in various common law and civil law countries in order to understand the limitation of our system and improve the same. Next, the paper counters all the justifications forwarded in favour of the doctrine and critiques the same based on (a) Jurisprudential argumentation and (b) the approach of the Indian Courts and European Courts (ECHR). In the end, the paper gives recommendations in order to reformulate the system of adverse possession in India and concludes that the unfairness in the old regime, lies not in the absence of compensation, although that is an important factor, but in the lack of safeguards against oversight or inadvertence on the part of the registered proprietor.
Keywords: Adverse Possession, Limitation Act, Section 27, Nature of title, Contradiction between Chapter 4 and Section 27.
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