Adverse Possession and Land Laws in Bangladesh

Introduction:

Bangladesh became an independent country after the liberation war, it gained independence in 1971 in consideration of 3 million people from that time it‘s become an independent country in the world. It was under British rule in the Indian subcontinent till 1947 and under Pakistan rule till 1971. Bangladesh contains 147570 kilometers of accumulated land, water land, and sea. the people increased day by day because the land became too low for people to live and they stayed in small areas where living was not in a suitable environment. So most people possess land illegally, wrongly, by fraud, miss presentation, undue influence, and disposed of the real owner for which the situation arises is called Adverse possession. For removing any hazardous, Bangladesh has passed huge laws and also contains huge laws from Pakistani, and British period law as a retrospective effect by the constitution applicable. Such as the Specific Relief Act, the Limitation Act, and the transfer of property,1882.The Survey and Settlement Manual 1935.

History

The concept of adverse possession appears in a portion of the code of Hammurabi, some 2000 years BCE (Before the Christian Era). Law 30 states that if a man leaves his house, garden, and field and someone else takes possession of his house, garden, and field and uses it for 3 years. If the 1st owner returns and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it.

 

In Roman Law, laws allowed anyone who was in possession of goods without title to become the lawful proprietor if the original owner did not appear after some time (one or two years) unless the good was obtained illegally (by theft or force). Adverse possession is probably one of the oldest laws to ever exist if not in the legal sense, then in real life. The ancient Romans held the belief that the land had a kind of spirit that was natural by the possessor and user of the land. The possessor or user of the land was considered to have a greater ownership of the land than the title owner. Even today, we have a saying possession in 9/10 of the law ―which had its origin in the concept of adverse possession.

What is Adverse Possession?

The definition of ―Adverse Possession is a legal doctrine by which a person who is not the legal owner of land can become its owner after having occupied it for a specified period of time. Adverse possession occurs when someone is in actual possession of a property for a continuous period of time in public by denying the ownership of another. Adverse possession is when a non-owner/trespasser/ squatter occupies real property without permission. The owner must try to remove them during the statute of limitations period; otherwise, the person committing the possession could potentially take legal ownership. The requirements to prove adverse possession tend to vary between jurisdictions. In many states, proof of payment for the taxes on a property and a deed is essentially required for the claimant to be successful.

There are many incidents of adverse possession of land in Bangladesh. We can see them through the judgment of some cases. Many cases have already been filed and settled under Section 28 of the Limitation Act. There are various criticisms for and against this trend across the country. Let us see the judgments of some of the cases decided under this section.

1) In this case, the High Court Division held that the plaintiff-respondent was able to prove that he was in possession of the suit property for more than 12 years prior to the suit, which was established by adverse possession against the defendant-respondent.

 

2) In this case held that possession by permission, however long it may be, confers no right on the occupier or his successors. It is well-settled that when possession is commenced by permission it will not be opposed unless something to be opposed is specifically done—in the hands of the heir, or even in the hands of the original permissive possessor.

 

3) The court has given its own observations in the judgment of many other such cases. Judgments in these cases can be used as precedents for the lower court.

 

Time Period of Adverse Possession

Each state has a time period during which the landowner of record can invalidate the claim at any time. Section 28 of the Limitation Act states that if a suit is not filed within the period prescribed by this Act for a person to file a suit for possession of any property, the person‘s right to that property shall be extinguished. To understand this section, we have to look at Section 8.

Who can apply for adverse possession?

Adverse Possession which contains on registered land, if someone who doesn‘t own any land or adjoining land, occupies someone else‘s registered land, then after 12 years of adverse possession, the owner of the land can apply to the land registration office to be registered as the new owner and can suit against possession who possess in force, illegally except by law.

The Specific Relief Act and Article 142 of the Limitation Act

Section 8 of the Specific Relief Act provides for the recovery of specific immovable property and Article 142 of the Limitation Act states that a suit for recovery of property under Section has to be filed within 12 years from the date of expropriation. However, if someone wants to forcibly occupy any property in your possession, then you can bring a temporary injunction order under section 144 of the Code of Criminal Procedure. In Bangladesh, adverse possession occurs if any person other than the owner continues to occupy and enjoy it for a period of more than 12 years. Basically, the main content of section 28 of the Limitation Act is the acquisition of ownership of land by occupation. The limitation act creates ownership, and right on a property without deeds. There are generally two ways in which ownership rights and assets are extinguished.

Requirements of Adverse Possession

To successfully claim land under adverse possession, the claimant must demonstrate that his or her occupation of the land meets the following requirements:

1) Continuous use: All elements of adverse possession must be met at all times through the statutory period in order for a claim to be successful. The statutory period, or ―the statute of limitations, is the amount of time the claimant must hold the land in order to successfully claim.

2) Hostile possession: Hostile Possession must be hostile, sometimes called adverse, if the title is to mature from adverse possession. Hostile possession means that the claimant must occupy the land in opposition to the true owner‘s rights. One type of hostile possession occurs when the claimant enters and remains on land under the color of title. Color of title is the appearance of title as a result of a deed that seems by its language to give the claimant valid title but, in fact, does not because some aspect of it is defective. If a person, for example, was suffering from a legal disability at the time he or she executed a deed, the grantee-claimant does not receive the actual title. But the grantee-claimant does have the color of a title because it would appear to anyone reading the deed that a good title had been conveyed. If a claimant possesses the land in the manner required by law for the full statutory period, his or her color of title will become actual title as a result of adverse possession.

3) Open and notorious possession: An adverse possessor must possess land openly for the entire world to see, as a true owner would. Secretly occupying another‘s lands does not give the occupant any legal rights. Clearing, fencing, cultivating, or improving the land demonstrates open and notorious possession, while actual residence on the land is the most open and notorious possession of all. The owner must have actual knowledge of the adverse use, or the claimant‘s possession must be so notorious that it is generally known by the public or the people in the neighborhood. The notoriety of the possession puts the owner on notice that the land will be lost unless he or she seeks to recover possession of it within a certain time.

4) Actual possession: The possessor must actively possess the property for the state. Predetermined statutory period, which may vary from three to 30 years. Possession may involve maintaining the land and—depending on state law—paying taxes.

5) Exclusive use: Adverse possession will not ripen into the title unless the claimant has had exclusive possession of the land. Exclusive possession means sole physical occupancy. The claimant must hold the property as his or her own, in opposition to the claims of all others. Physical improvement of the land, as by the construction of fences or houses, is evidence of exclusive possession.

Effect of Adverse Possession

The legal effect of adverse possession is that if a suit is not filed within the period prescribed by this Act for a person to file a suit for possession of any property, the person‘s right to that property shall be extinguished. If the true owner does not file a suit even after twelve years of dispossession, he loses his right to the property. The case of Dalimon Nesha Bewa vs Md. Hasmat Ali dealt with the acquisition of property or ownership by adverse possession. The judgment, in this case, said, ―From the evidence on record and the surrounding circumstances, it appears that the defendants have been in possession of the suit land for more than 12 years and claim the adverse title against the plaintiff or their predecessors in title and they were completely evicted and thus the right of the plaintiff, The title and interest, which they claim to have acquired in the said property, has been extinguished by adverse possession and adverse possession has been created in favor of the defendants. Hence it can be said that long tenure creates ownership, rights, and ownership in the property, without the need for any documents.

LAND LAWS IN BANGLADESH

Land law is the form of law that deals with the rights to use, ataractic, or exclude others from the land. In many jurisdictions, these kinds of property are transferred to real property or real owner, as distinct from own property. Land use Agreements all contracts, including renting, are an important intersection of property and contract law. Responsibility on the land rights of one, such as an easement, may rule on constitute the land rights of another. Mineral or all immovable property rights and water rights are closely linked, and often interrelated the basic.

LAND RELATED LAWS

Land can be owned by the individual the cooperative, and the state under various legislation prevailing is Bangladesh. Land is a fundamental factor for agricultural production and is thus directly linked to food security. So, the security of land interest is an important foundation for social and economic development. Besides, securing land rights is particularly relevant to the security of vulnerable groups, e.g. the poor, the women, and the in-digamous people. This way, through ensuring land rights, social and economic development may be made. Although the land laws of Bangladesh have a long history, basically, the following Acts and Ordinances, among others, are applicable in Bangladesh in this regard, such as:

1) The Land Survey Act 1875: This Act provides the survey and demarcation of land, with a view to the definition and identification of land, the better security of land property, and the prevention of encouragement and dispute, to provide for a survey of lands and for the establishment and maintenance of marks to distinguished boundaries.

2) The Transfer of Property Act 1882: The Transfer of Property Act, of 1882, which came into force on July 1, 1882, deals with the aspects of the transfer of properties between living beings. One of the oldest laws in the Indian legal system which is applicable in Bangladesh the Transfer of Property Act is an extension of the law of contracts and runs to the succession laws. For those planning to transfer their immovable property, knowing the key aspects of the Transfer of Property Act is quite important. The term transfer includes transfer through sale, mortgage, lease, actionable claim, and gift or exchange. The Act does not cover transfers by the operation of law, in the form of inheritance, forfeiture, insolvency, or sale through the execution of a decree. The Act is also not applicable to the disposal of properties through wills and does not deal with cases of succession of property.

3) The PDR Act 1913: The Act consolidates expedient, and amend the law relating to the public demand recovery in Bangladesh.

4) The Survey and Settlement Manual 1935: The latest survey 17^th January 2019 on the manual of Survey and Settlement 1935.and so on, such as:

a) The Non-agricultural Tenancy Act 1949

b) The State Acquisition and Tenancy Act of 1950

c) The Land Development Tax Ordinance 1976

d) The Land Reforms Ordinance1984

e) The immovable property (Acquisition and Requisition) Ordinance 1982

f) The Land Reform Board Ordinance 1989.

g) The Land Appeal Board 1989.

h) The Land Management Manual 1990.

ADVERSE POSSESSION-RELATED LAND LAW IN BANGLADESH

1) The Limitation Act, 1908 of section 28 within the Extinguished on the rights of the property.

2) The Specific Relief Act, 1877 of section 9 related also to the adverse possession of the property on land.

3) The constitutional law of Bangladesh in Article 142 mentioned land property which is related to adverse possession land law in Bangladesh. The State Acquisition and Tenancy Act 1950 is a law relating to tenancies to be held under the state and other matters connected therewith.

4) Acts Amounting to adverse possession and Acts not amounting to adverse possession in a case of adverse possession of land there should be two aspects taken into consideration. Firstly, the nature of possession of land should be exclusive, continuous, and uninterrupted and it should be actual physical possession and not merely constructive possession over the land. Secondly, the possession should be hostile to the actual owner. The requisite ingredient of animus possidendi (intention to possess) should be present when claiming ownership by taking the plea of adverse possession. Therefore, to assess a claim of adverse possession, the two-pronged inquiry is required:

a) Application of limitation provision thereby jurisprudentially and wilful neglect element on part of the owner established. Successful application in this regard distances the title of the land from the paper owner.

b) Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner to the adverse possessor. Right thereby accrues in favor of the adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property. Broadly there are three cases where a party's plea of adverse possession cannot be taken.

Firstly, in the cases of permissive possession, the plea of adverse possession cannot be taken by a part. The second situation in which a party cannot take the plea of adverse possession is when the possession of the land is given by one party to another as part of performance pursuant to an agreement to sell as provided under Section 53A of the Transfer of Property Act, 1882. This situation was dealt with by the Hon‘ble Supreme Court in the case of Mohan Lal (deceased) through his LRs.

Prior to enactment, the agrarian law of Bengal mainly consisted of. The Permanent Settlement regulations made ZAMINDARs owners of their land subject to payment of a fixed amount of their land revenue to the government and they were entitled to collect rent from their subordinate tenants, who were again entitled to create subordinate interests.

 

Permanent Settlement Regulations 1793 created a landed aristocracy that was supposed to be loyal to the British regime. Bengal Tenancy Act of 1885 defined the rights and liabilities of the tenants in relation to their superior landlords. However, at present, the tenancy and the rights and liabilities of the owner of such land are regulated by the SAT Act, 1950 Agricultural Land & the NAT Act 1949 in the case of non-agricultural land. Now there is only one class of holders of agricultural land, namely, Malik‘s [owner], and the rights and liabilities of every such land-holder are regulated by the provisions of the SAT Act (Section 81 (1), The State Acquisition and Tenancy Act). But no such Maliki‘s are entitled to any rights to any Interest in the Sub soil including the Right to minerals in his holdings.

THE RULE AND ELEMENTS OF ADVERSE POSSESSION OF LAND

The term adverse possession refers to a legal principle that grants title to someone who resides on or is in possession of another person's land. The property title is granted to the possessor as long as certain conditions are met including whether they infringe on the rights of the actual owner and whether they are in continuous possession of the property. Adverse possession is sometimes called squatter‘s rights, although squatter‘s rights are a colloquial reference to the idea rather than a recorded law. As mentioned above, adverse possession is a legal situation that occurs when one party is granted title to another person's property by taking possession of it. This can happen intentionally or unintentionally with or without the property owner's knowledge. Adverse possession is the legal process whereby a non-owner occupant of a piece of land gains title and ownership of that land after a certain period of time.

The claimant, or disseisor, must demonstrate that several criteria have been met before the court will allow their claim Requirements may include continuous use, a takeover of the land, and exclusive use. Also known colloquially as squatter’s rights or homesteading, the law may also be applied to other properties such as intellectual or digital/virtual property. There are some measures landowners can take to avoid adverse possession.

 

MAKING AN ADVERSE POSSESSION IN GROUND FOR APPLICATION

 

Application: Unregistered land like Bangladesh such as the UK. The person must apply in Form FR1: Rule 23 under Land Registration Rule 23. Please note that a plan showing the land must be attached to the FR1 form if the verbal description as in panel 2 of the FR1 form does not identify the location and does not match the extent of the land on the Ordnance Survey map. A plan is required in the event of an adverse possession application. To decide which class of title to apply for in Form FR1, one should consider the points made in the class of title. If you fail to fill in panel 12, we will be obliged to return Form FR1 to you. You have to send Form DL in a Duplicate list of supporting documentary evidence under Form FR1: Rule 24 of Land Registration Rules 2003. The person shall remit the appropriate fee under the Fee Order and Inspection Fee – and the same shall be inspected. Only certified copies of Form ST1, Form ST2, Statutory Declaration, and other evidence are to be submitted in accordance with our Document Management Policy. If any original copies are filed they will be scanned and destroyed.

 

Filing Cases/ suits for Defending Title

One can file a case under sections 144 and 145 and also under section 133 of the Code of Criminal Procedure, 1898 before the Executive Magistrate for defending one‘s possession. However, a decision of Civil Courts shall supersede the decision of a criminal court on property-related disputes. No Court fees are necessary for filing a criminal case. A person can file a title suit under the Specific Relief Act, 1877, or an injunction suit under Order 39, Rules 1 and 2 of the Code of Civil Procedure, 1908 for defending his ownership and possession. Court fees are mandatory for filing a civil suit. To retain possession against an individual one can, file a suit under section 9 of the Specific Relief Act, 1877 known as a suit for Khas possession.

A writ sometimes provides an extraordinary remedy to defend ownership and possession under articles 32, 42, 44, and 102 of the Constitution when no other equally efficacious remedies are available. A person may become owner of land property by adverse possession i.e., if he can enjoy and retain possession for more than twenty years without any interruption. Regarding government land, one can claim ownership by possession after a period of continuous enjoyment of sixty years such as Khas land vested property abandoned property, or property owned by alluvion and dilluvion. In short, the above are the most common ways in Bangladesh to own land property.

 

Case law-related adverse possession:

 

The concept of adverse possession was well-settled by the judicial committee of the Privy Council in 1907.

Perry vs. clissold (1907) AC, 73.79

It cannot be disputed that a person in possession of land in the assured character of the owner and exercising peacefully the ordinary right of ownership has a perfectly good title against all the world by the rightful owner and the rightful owner comes and asserts his title by the process of law within the period prescribed by the provision of the statute of limitation applicable to the case his right is forever extinguished and the processor and owner acquire and absolutes title.

 

Sm Karim v. Mst. Bibi shakina

 

Following the equitable principle of ―nec vi nec clam necprecaria ―- without force, without secrecy, without permission. It was held that adverse possession must be adequate in continuity, publicity, and extent, and a plea is required, to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.

 

However, in the recent judgment of Ranvinder Kaur Grewal and others v ManjitKaur and others (2019) -―the Hon'ble Supreme Court held a country position that a plaintiff can file suit for perfection of title by adverse possession.

 

Case law from the perspective of Bangladesh

 

Dailimon Nesha Bewa vs. MD. Hasmat Ali (61 DLR, AD) 8

 

This case dealt with the acquisition of property on ownership by adverse possession. The judgment of this case is ―from the evidence on record and the surrounding circumstances, it appears that the depends have been in possession of the suit land for more than 12 years and claim the adverse title against the plaintiff on their predecessors in title and they were completely evicted and thus the right of the plaintiff, the title and interest, which, they claim to have acquired in the said property has been extinguished by the adverse possession and it has been created in favors of defendant.so, we can say that a long time creates ownership, rights, and ownership in the property, without the need for any document. Also, many suits have already been filed and settled under section 28 of the Limitation Act. There is various criticism against the adverse possession in the country, let‘s see the judgment of the case decided under section 28 of the Limitation Act 1908. In the case, the high court division held that the plaintiff-respondent was able to prove that he was in possession of the suit property for more than 12 years. Prior to the suit which was established by adverse possession against the defendantrespondent. In the case of possession by permission, it may be conferring no right on that occupation on his successor.it is well settled that when possession is commenced by the permission it will not be opposed unless something to be opposed is specifically done in the hands of the heir, or even in the hand of the original permission possession.

 

Adverse possession under section 28 of the Limitation Act, 1908

 

We know that adverse possession happens when any person is in actual possession of a property for a continuous period of time in public by denying the ownership of another. The Legal jurisprudence of law explains that always be aware of own right and the law never give any relief by itself, relief has to be sought. Now here we will explain in detail how one right is extinguished from an immovable property (such as land, building, or flat) according to the Limitation Act, one right to one‘s property can be extinguished after a certain period of time.

 

Analysis of Limitation Act,1908:

Limitation (tamadi) means extinction or cessation. The time limit for filing a suit is fixed by the Limitation Act, the Limitation Act objects to solving legal complications. it‘s based on the principle that the Act helps the vigilant and not indolent (not concerned). If a person is not concerned about his rights and neglects his rights, the Act will not provide him any subsequent relief. Section 28 of the Limitation Act states that if a suit is not instituted within the period prescribed by this Act states that a suit for recovery of property under section 8 has to be filed within from the date of seizure. However, if someone wants to emphatically occupy any property in possession, then you can bring a temporary injunction order under section 144 of the code of criminal procedure.

So, if we see that section 28 of the Limitation Act, it is clear that if anyone is dispossessed from any land if the person doesn‘t file a suit for recovery of property within 12 years of dispossession, then the person s will be disposed of of will lose his right from that property.

Conclusion

Above explanation, we can understand adverse possession and land law in Bangladesh which are valuable tools in law. At present, huge dis honest people possess huge land by forcing power from the poor and possess also the land government Khas land. But in spite of huge laws no laws, or rules can stop them because of only dishonesty and taking land from people by the government officers. we know the concept of adverse possession was introduced to us more than 5000 years before which happened during the Hammurabi period.so I think by the flow the law needs to be less the matter of adverse possession. Observing all the possibility matters, we should stand against the dispossessed not hamper others, and give suitable punishment.

Reference / Bibliography:

1. The third nation, partition, Boundary making, and 'adverse possession 'in post-colonial South Asia

2. SMT.Sri Devi Shanker,prl,junior civil judge ,sircilla

3. legal home.org ,by shiptaBarua

4. www. layer sinusitis ,com . Barrister, Advocate, and legal consultant

 5. http:// legalhome.org

 6. http://investopedia.com

7.  61 DLR (AD) 8

8. The BENGAL PERMANENT SETTLEMENT REGULATIONS of 1793 & the BENGAL TENANCY ACT of 1885

9. 52 DLR (AD) 121

10. 59 DLR (AD) 240

Written By---

Salma Akter, Tahmina Islam & Hanif Mia

Department of Land Management and Law

Jagannath University, Dhaka