By Sunil Murarka

In the last week of April, the Supreme Court  while reiterating the principles of acquisition of title by adverse possession observed that mere continuous possession howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession. It should also be proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner.

The apex court has time and again stated that the law of adverse possession was archaic and should be seriously looked into. It has stated that in adverse possession, a trespasser who is actually guilty was able to gain legal title over the property and found it baffling that an illegal act was actually being rewarded. This is tantamount to punishes the property owners and rewarding the trespassers instead of doing the opposite.

The origin of the doctrine or concept of “adverse possession” cannot be said with precision as even the historians hold the view that it is surrounded by a “historical fog”. The earliest recorded time from which this doctrine finds recognition is to be found in the “Code of Hammurabi” which dates back to about 2000 years before Christian era, i.e. about 2000 B.C. King Hammurabi was the sixth King of the First Babylonian Dynasty–he was an outstanding Ruler and he is especially known as a lawgiver – being the author of the Code in his name as mentioned above. There were 282 Rules in the said Code and 3 Rules dealt with the concept of adverse possession. Rule 30 of the Code basically provides that if a man left his house, garden, and field and someone else took possession of his house, garden, and field and used it for three years and if the first owner returned and claimed his house, garden, and field, it shall not be given to him, but he who had taken possession of it and used it shall continue to use it.

It was believed by the Ancient Romans that a person who possessed land nurtured the spirit of the land and gained a greater “ownership” in the land than the title owner. Even today, there is a saying “…possession is nine-tenths of the law…” which had its origins in the concepts of adverse possession.

The earliest codification of adverse possession in English law is found in the Statute of Westminster, in 1275, under which limited actions for the recovery of land could be made.  In early England the best evidence of ownership was possession.  The Statute of Limitations,1639 set the period at 20 years within which an owner could sue for recovery of possession.

The modern concept of adverse possession has its origin from the concept that land derives its value from what it could produce and consequently the person who possesses the land and uses it to produce something of ultimate benefit to society was seen as the person who held best title to the land.

Maybe, because of its usefulness, the concept of adverse possession remains as part of the law and is still with us even after 4000 years because it is so valuable in gaining, holding and perpetuating ownership of land. History has many examples of statutes recognizing title of land/ immovable property by adverse possession subject ofcourse to the period of limitation.

From the above narration we become somewhat familiar with the history of the concept of adverse possession and why it is still with us for such a long period of time.

The claim to rights in land/immovable property on the basis of possession hasbeen recognized in majority of the modern legal systems of the world such as USA, UK, France, Germany, Hungary, Spain, Denmark, Poland, Australia, New Zealand, India, etc. The concept and elements of adverse possession are mostly similar but the limitation periods varies from Country to Country or even within a Country.

Let us now examine the law governing the concept of adverse possession and the trend relating thereto in India. The Indian Limitation Act,1963 (1963 Act) governs the law of adverse possession and the same is found in Section 27, Articles 64, Article 65 and Article 112 of the SCHEDULE thereto.

Section 27 reads as follows – “Extinguishment of right to property – At the determination of the period hereby limited to any person for instituting the suit for possession of any property, his right to such property shall be extinguished.”

Article 64 prescribes a limitation period of 12 years for a suit for possession based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessedand the said period starts from the date of dispossession.

Article 65 also prescribes a limitation period of 12 years for a suit for possession of immovable property or any interest therein based on title and the said period starts from the point of time when the possession of the defendant becomes adverse to the plaintiff.

Article 112 provides that for any suit by the Central Government or any State Government including the Government of the State of Jammu and Kashmir (except a suit before the Supreme Court in exercise of its original jurisdiction) the period of limitation is 30 years and the period of limitation would begin to run from the date as provide for in a like suit by a private person.

From the above provisions of the 1963 Act is it clear that if the suit for possession is not filed within the prescribed period of limitation then the right based either on title or possession will be extinguished and the possessor as against the previous title holder or the previous possession holder gets transformed into ownership. It is also important to note that Section 27of the 1963 Act is an exception to the general rule that limitation periods bar only the remedy but does not extinguish the title, which means it is akin to the rule of substantive law.

The Judicial Committee of the Privy Council inPerry vs. Clissold(1907) AC 73 held as follows : “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title.”

The Hon’ble Supreme Court of India in Nair Service Society vs. K.C. AlexanderAIR 1968 SC 1165 while approving the above dictum has held as follows “The cases of the Judicial Committee are not binding on us. But we approve of the dictum in 1907 AC 73. No subsequent case has been brought to our notice departing from that view. No doubt, a great controversy exists over the two cases of (1849) 13 QB 945 and (1865) 1 QB 1. But it must be taken to be finally resolved by 1907 AC 73. A similar view has been consistently taken in India and the amendment of the Indian Limitation Act has given approval to the proposition accepted in 1907 AC 73 and may be taken to be declaratory of the law in India.”

The Hon’ble Supreme Court of India inits various decisions over a period of time has held that the plea of adverse possession can be raised only by way of defence and in its latest judgment in Mallikarjunaiah VSNanjaiah(Civil Appeal No.7768 of 2011 decided on 26th April, 2019) while discussing its earlier decisions on adverse possession relied upon and quoted with approval paragraph 14 of its decision in ChattiKonati Rao Vs PalleVenkataSubba Rao (2010) 14 SCC 316 which reads as follows :

“14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, inpublicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within 12 years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law.”

The Hon’ble Supreme Court in some of its decisions in the recent past has observed the view that there is a need that the Government takes a fresh look at the law on adverse possession by either altogether abolishing it or amending it. The observations in HemajiWaghajiJatvs. BhikhabhaiKhengarbhaiHarijan((2009) 16 SCC 517)at paragraphs 32 to 34 are quoted below :-

“32. Before parting with this case, we deem it appropriate to observe that 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 passion of the property of the true owner. The law ought not to benefit a person who in clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.

33. We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to lose its possession only because of his inaction in taking back the possession within limitation.
34. In our considered view, there is an urgent need of fresh look regarding the law on adverse possession. We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law.”

In State of Haryana Vs. Mukesh Kumar 2011(10) SCC 404, the Hon’ble Supreme Court has made certain important observations and reiterated to have a fresh look at the law of adverse possession as made earlier in HemajiWaghaji’s case (supra) and the same are quoted here in below :

“42. We inherited this law of adverse possession from the British. The Parliament may consider abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest.

The Government instrumentalities – including the police -in the instant case have attempted to possess land adversely. This, in our opinion, a testament to the absurdity of the law and a black mark upon the justice system’s legitimacy. The Government should protect the property of a citizen – not steal it. And yet, as the law currently stands, they may do just that. If this law is to be retained, according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to compensate title owners according to the prevalent market rate of the land or property in question. This alternative would provide some semblance of justice to those who have done nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain on property. While it may be indefensible to require all adverse possessors – some of whom may be poor – to pay market rates for the land they possess, perhaps some lesser amount would be realistic in most of the cases. The Parliament may either fix a set range of rates or to leave it to the judiciary with the option of choosing from within a set range of rates so as to tailor the compensation to the equities of a given case.

43. The Parliament must seriously consider at least to abolish “bad faith” adverse possession, i.e., adverse possession achieved through intentional trespassing. Actually believing it to be their own could receive title through adverse possession sends a wrong signal to the society at large. Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief.
44. In case, the Parliament decides to retain the law of adverse possession, the Parliament might simply require adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12. Such an extension would help to ensure that successful claimants have lived on the land for generations, and are therefore less likely to be individually culpable for the trespass (although their forebears might). A longer statutory period would also decrease the frequency of adverse possession suits and ensure that only those claimants most intimately connected with the land acquire it, while only the most passive and unprotective owners lose title.
45. Reverting to the facts of this case, if the Police department of the State with all its might is bent upon taking possession of any land or building in a clandestine manner, then, perhaps no one would be able to effectively prevent them.
46. 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.
47. 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.
48. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change.
49. If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country.
50. It is indeed a very disturbing and dangerous trend. In our considered view, it must be arrested without further loss of time in the larger public interest. No Government Department, Public Undertaking, and much less the Police Department should be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens in the manner that has been done in this case.
51. In our considered view, there is an urgent need for a fresh look of the entire law on adverse possession. We recommend the Union of India to immediately consider and seriously deliberate either abolition of the law of adverse possession and in the alternate to make suitable amendments in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law.”

TheLaw Commission of India thereafter prepared a Questionnaire containing 11 questions seeking responses from the public, especially, the Judges, lawyers, legal academia and bureaucracy on various issues concerning adverse possession keeping in view the legal and factual position and also the views expressed by the Hon’ble Supreme Court of India in the above mentioned cases.

As per the reports of the Law Commission itself there are thousands and thousands of cases pending in Indian Courts on the issue of adverse possession.

Till such time, the law relating to adverse possession is either abolished or amended, we in India would continue to be governed by the provisions of the 1963 Act as quoted herein above and the judgments of the Hon’ble Supreme Court on the same issue.

—The Author is an advocate in the Supreme Court of India