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Non Alienability of Land

Updated: Aug 9, 2021

The ownership of the arable land vested in the cultivator yet it was not alienable in the beginning, but it was heritable. Vijnaneshwar. In his Mitakshara. expounded what was apparently in his days the idea as to non-alienability of land when it was occupied by the members of a joint family and was ancestral. But the rival idea as to alienability was making its way. Vijnaneshwar himself admitted that right of alienation was exercisable under certain circumstances. Even a single coparcener may make a gift, mortgage or sale of land (immovable property) at a time of distress, for the sake of family and specially for religious activities. But Jimutvahana, the author of Dayabhaga, entirely discarded the theory of nonalienability, and according to him every owner of land, if a male, had the full right to alienate the same either by gift or sale.

Acquisition of Right by Adverse Possession

Possession has always played part in all systems of jurisprudence in the acquisition of right in land, and the first tiller might lose his right by adverse possession by another. It is quite clear that during the Sutra period the right by possession and the effect of adverse possession as creating prescriptive right were well understood and recognized. In Vishnu Smriti it is laid down, “If possession has been held of a land by three successive generations in due course, the fourth in descent shall keep it as his property even without a title”. Brihaspati says, “He whose possession has been continuous from the time of occupation, and has never been intercepted for a period of thirty years cannot be deprived of such property”. Authors of other Smritis have reduced the period to twenty years. Yajnavalkya says, “If a man knowingly and without complaint allows another, who is in no way related to him, to be in possession of his land for twenty years, his right to the same becomes extinguished”. Vyasa, whose authority in these matters is very high, is also of the opinion, “If the land of one is possessed by another for twenty years, his right to sue for possession ceases”.

The law of England as to acquisition of right by prescription passed through similar stages, until the period was reduced to twenty years and quite correctly to twelve years. In Uttar Pradesh also under Sections 209 and 210 of The Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, the acquisition of right by prescription is twelve years. The Hindu Revenue System


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