History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.228.11

v4.c63.228.11

Śrīkara (as stated in the Vyavahāramātṛkā) tried to reconcile the conflicting smṛti texts by holding that in twenty years the real owner lost ownership if he was present and did not protest while a stranger was in possession, but passages speaking about possession for three generations (or sixty years) applied only where the owner was absent. The Mit. and others point out that Yāj. II. 24 (who employs the words 'paśyataḥ' and 'abruvataḥ') conveys that if a stranger takes possession while the owner is absent or if the owner protests, then even 20 years' possession does not lead to the loss of anything. The text of Nār. IV. 87 quoted above (p. 318) shows that the sage held that possession for several hundred years even would not avail the possessor if it is certain or established that the possessor had no title at all to begin with or that his possession started wrongfully. This text is emphasized by those who favour title and want to discourage persons benefiting by their own wrongdoing. But there are other smṛti texts of a contrary tenor. For example, Nār. IV. 91 himself says 'whatever has been enjoyed even unlawfully for three generations (i. e. by three ancestors) including the father cannot be recovered by the owner from the person (who is the 4th in succession) because it has gone through three lives in succession';