Fifteen years ago M.N. Tapadar allowed a close relative who had fallen on bad times to stay in one of his houses at Patuli in Calcutta. The man stayed on in the house with his family, enjoying the premises for free, and showed no inclination to leave. Finally, about five years ago, Tapadar asked his relative to move out. But he was in for a rude shock. “He told me outright that he wanted a share in the property as he and his family had been serving as caretakers to the house for so many years,” Tapadar says indignantly.

Last year, Tapadar approached the courts to oust the squatters. But the respondents claimed that since they had been in possession of the property for more than 12 years and the owner had not disputed the fact in a court of law, it is they who deserved to be the rightful owners of the property. They made the deposition under the Limitation Act, 1963, which sets out time limits for filing a case for different types of claims. Articles 64 and 65 of the Limitation Act state that a person can claim “adverse possession” (possession by default) of a property without paying any compensation to the real owner, by proving that he or she has been in the uninterrupted and undisputed possession of the property for at least 12 years.

Luckily for Tapadar, he had all the right documents, and ultimately, the squatters failed to convince the court and were asked to vacate the premises.

Despite winning the case, Tapadar had to reach an out-of-court settlement with the family to dissuade them from appealing to higher courts. At the end of it, he was poorer by about Rs 3 lakh. “But even so, I am glad that it is over. The whole thing had started to affect my health,” says the retiree.

There are many like Tapadar who, because they allowed squatters to remain on their premises for 12 years or more, are left with little legal recourse to oust them. But that may change soon.

Recently, the Supreme Court asked the government to amend the Limitation Act. On September 23, in the case of Hemaji Waghaji Jat versus Bhikhabhai Khengarbhai Harijan, Supreme Court Justice Dalveer Bhandari said, “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… We recommend the Union of India to consider and make suitable changes to the law of adverse possession,” the court noted.

The present Limitation Act has its origins in the Limitation Act of 1908. In the old British era law, the burden of proof was on the owner of the land who had to show within 12 years from the date of dispossession that he had the title and the right to the property. However, under the 1963 law, the squatter was given the right to contest the claim of the true owner on the ground of adverse possession.

“I think the law needs to be reconsidered and revised,” says Vijay T. Shankardass, senior Supreme Court counsel. Shankardass fought on behalf of author Salman Rushdie when the Himachal Pradesh government claimed the right to Rushdie’s family house in Solan, citing the law of adverse possession. Rushdie had made no move to reclaim the house since 1969. After a three-year-long court battle, the government restored the house to the author in 1997.

Some legal experts feel that the present law is justified. “The law is meant to punish those who sleep on their rights. If a person doesn’t approach the court to claim his property within a 12-year period, I think it is fair to assume that he is no longer interested in his property,” says Himinder Lal, a Supreme Court advocate.

Evidently, Justice Bhandari thought otherwise. In the Hemaji Waghaji Jat versus Bhikhabhai Khengarbhai Harijan case, the respondent was accused of forcibly taking possession of land at Yavarpura in Palanpur district, Gujarat, in 1960. A case was filed against him 26 years later, in 1986. In his judgement ordering the land to be restored to the owner, Justice Bhandari said, “We fail to comprehend why the law should place a premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose its possession only because of his inaction in taking back possession within limitation.”

Many legal experts, who hold that the limitation law is unfair to property owners, are heartened by the apex court ruling. Says Abhijat Parashar Medh, the appellant’s advocate in the recent case, “This is a very progressive judgement by the Supreme Court. Most people are simply ignorant about this law and you cannot punish the ignorant.”

Others, like Lal, feel that it would not be right to let someone who has been negligent about protecting his rights completely off the hook. “The government can consider changing the law by increasing the time limit within which a claim can be made. But in my opinion, it should not reward owners who allow their property to be occupied for ages and then one day wake up and knock on the doors of the court,” he says.

Shankardass points out that the government could follow the UK’s example in changing the law. British law stipulates that an ‘adverse possessor’ is entitled to apply for the status of a rightful owner after 10 years of adverse possession. The original owner of the land, and certain other persons interested in the land, are notified and if the application is not opposed by any of those notified, the adverse possessor is registered as the owner of the land. Otherwise, adverse possession for 10 years does not by itself give a person the right to be the owner of the land.

“Frankly, I do not see any pitfalls in making such a change to our limitation law,” says Shankardass.

Clearly, the ball is in the government’s court now.