The Law of Adverse Possession, it is being consistently recognized as affront to ideas of equity, justice and even common sense. Courts have placed a great burden of proof on a person claiming ownership on the basis of adverse possession owing to the inherent inequity of it. In this judgment the Hon’ble Supreme Court observes the same in it’s lucid best :-
“It is our bounden duty and obligation to ascertain the intention of the Parliament while interpreting the law. Law and Justice, more often than not, happily coincide only rarely we find serious conflict. The archaic law of adverse possession is one such. A serious re-look is absolutely imperative in the larger interest of the people. Adverse possession allows a trespasser – a person guilty of a tort, or even a crime, in the eyes of law – to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible”
Justice D.Bhandari on the Law of Adverse Possession in State of Haryana v. Mukesh Kumar & Ors (30.09.2011)
i)Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.
ii)The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
iii)A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
iv)The right of private defence commences as soon as a reasonable apprehension arises and it is co- terminus with the duration of such apprehension.
v)It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude – person in such difficult circumstances cannot be expected to weigh his act on golden scales.
vi)In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
vii)It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
viii)The accused need not prove the existence of the right of private defence beyond reasonable doubt – merely on preponderance of probabilities.
ix)The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
x)A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.
Darshan Singh v. State of Punjab (2010) SC