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 Jus Corpus Law Journal
Open Access Law Journal - Copyright © 2021 - ISSN 2582-7820
Editor-in-Chief - Prof. (Dr.) Rhishikesh Dave; Publisher - Ayush Pandey

This is an Open Access article distributed under the terms of the Creative Commons Attribution-
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original work is properly cited.

Adverse Possession: Right or Theft? - Analysis of Property Law

Manav Bhallaa

ao.P. Jindal Global University, Sonipat, India

Received 29 May 2021; Accepted 11 June 2021; Published 15 June 2021

The notion of adversepossession was historicaly associatedwith land being seized by force or captured by feudal lords, barons,

and conquerorsfrom the poor who were unable to preserve their claim and claim to such territories.This was usually done in the

past when one nation or ruler invaded another, and then simpy took the conquered territogfrom the original and genuine

owner, although this notion has evolved with time. Adverse possession is a more than a centuy-old legal notion in India, and it
is essentially founded on three key ideas. To begin with, there are conflicting ownership rights between the real owner and the

person in charge of the property. The right of a person who takes care of the land and makes the greatestand greatest use of it
will triumph over the right of a person who does not take care of the land. The author seeks to critique the concept of adverse
possession and its implementation in India. A criticalanaysis of the relevantprovisions of statutes relating to adversepossession

accompanied by a study of its origins and criticisms thereof will he/p the reader better understandits place in the Indian legal

regime. This isprecisey what thispaper shall do.

Keywords: adversepossession, right to property, limitationperiod, land owner, trespassing.

INTRODUCTION

Adverse possession in simple terms is a kind of possession where a person/trespasser not

having title to land, occupies it for a long period without the permission of the legal owner,

and subsequently gains ownership of that land due to the legal owner's inaction. In a very

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 BHALLA: ADVERSE POSSESSION: RIGHT OR THEFT? - ANALYSIS OF PROPERTY LAW

brief reading of the concept, it becomes evident that such a law basically converts the illegality

of certain actions to legal. A person essentially guilty of a tort gets the benefit of the title of the

land he encroaches, in the eyes of law. However, such an unconvincing interpretation of law

demands a detailed look into its objects and an analysis of the very principles where it finds its
basis, to ensure if the law really is as archaic and unjustifiable as it seems at the first glance.

This paper will look at the various aspects of adverse possession as it is implemented in India,
in light of its need and propensity to be misused given the socio-political scenario in the
country, with the help of various judicial pronouncements.

HISTORY OF THE CONCEPT

The legal doctrine finds its origins in English law and dates as far back as the thirteenth

century in the statute of Westminster.1 It originated from the concept of 'Seisin', a feudal law

term that came to mean a type of possession that gained legitimacy with the passage of time. 2

The object of this early doctrine was to prevent legal property disputes that were not only
expensive for the state but also time consuming. 3 Additionally, it also ensured that land was

not wasted by their owners as they were made to monitor the same under fear of losing their

proprietary rights. This was subsequently adopted by the United States, which mirrored the
English-law counterpart, so far as having the same period of limitation (twenty years). As

property rights developed and the land became scarce, changes were made to the law
pertaining to adverse possession to adapt to the changing times. Such laws were also used by
the government of the United States to claim lands that legally belonged to Native Americans,

a ground on which the law is still criticized today. Over time the courts in both countries

started looking at this concept negatively in light of the expanding jurisprudence of human

rights, and other factors which will be talked about in the later sections of this paper.

1 Pradeep Kumar Mani, 'Adverse Possession: A Critique' 43 (Ujala) <https:/ >

accessed 12 May 2021
2'Adverse Possession' (BritannicaEncyclopedia) <ht-s://www.britannicacom/topic/adverse-rossession>
accessed 12 May 2021
3 Mani (n 1)
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 JUS CORPUS LAW JOURNAL, VOL. 1, ISSUE 4, JUNE -AUGUST 2021

THE LAW AS INTERPRETED IN INDIA

Indian property law has had its foundations in colonial legislation and the concept of adverse

possession is no exception. The laws relating to this concept are contained in the Indian

Limitation Act, 1963. The following are sections of the act are relevant to the discussion

-
Section 3 - entails that a suit cannot be filed once the limitation period for the said suit has

ended, extinguishing the right of the property owner (in this case) to file a suit.

Section 27 - expands upon the consequences of not filing a suit for possession of the property,
by extinguishing the right to ownership of such property.

Article 64 - prescribes a limitation of 12 years for a suit of possession based on previous

possession and not on title, when the plaintiff has been dispossessed and the period of
limitation starts from the date of dispossession.

Article 65 - prescribes a limitation of 12 years for a suit of possession of immovable property

where the period of limitation starts from the date of adverse possession which is hostile

towards the plaintiff.

Article 112 - provides that for any suit by the state or central government, the period of

limitation for a similar suit would be 30 years instead.

It becomes clear now that a reading of Section 3 and Section 27 along with one of the three

above mentioned Articles is where we derive the legal right of adverse possession in Indian

law. Together these laws prescribe that when a cause of action exists to file a suit of possession

and if the suit is not filed within the limitation period prescribed, not only will the right to file

a suit come to an end but also the right to such property. 4 The title of the property, in this case,

will transfer onto the possessor and his possessory rights will transform into ownership rights.

The possession only needs to be open and without concealment. It need not be as effective so
as to bring it to the specific knowledge of the actual owner. 5 It must however be hostile to the

4 Villiamma Champaka v Sivathanu Pillai(1964) 1 MILJ, 161 (FB)

5 Kshitij ChandraBose v Commissioner of Ranchi AIR 1981 SC 707
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 BHALLA: ADVERSE POSSESSION: RIGHT OR THEFT? - ANALYSIS OF PROPERTY LAW

owner, 6 adequate in continuity,7 and comprise Animus Possidendi.8 In simpler terms, the
possession must be long term and adverse to the rights of the true owner, and there must be
an intention to possess.

The concept was succinctly described by the Judicial Committee of the Privy Council in Perry
v. Clissold9:

"It cannot be disputed that a person in possession of land in the assumed character of the 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."

This statement of law was later adopted by the Apex court in India in Nair Service Society Ltd. v.
K.C. Alexander10 . The three judge bench stated that:

"The cases of the Judicial Committee are not binding on us. But we approve of the dictum in
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 declaratoryof the law in India."

Eventually, the Supreme Court elucidated the meaning of adverse possession perfectly in the
Indian context. One such extract can be taken from the relatively recent case of Amarendra

Pratap Singh v. Tej Bahadur Prajapatill to perfectly summarise the meaning as well as the
essentials demanded by the law in India:

"A person, though having no right to enter into possession of the property of someone else, does
so and continues in possession setting up title in himself and adversely to the title of the owner,

6 Premendu Bhushan Mondal v SripatiRanjan Chakravarty AIR 1976 Cal 55

7 S M Karim v Bibi Sakina AIR 1964 SC 1254, para 5
8 Annakili v A Vedanayagam AIR 2008 SC 346, para 22
9 Perry v Clissold (1907) AC 73, para 79
10 Nair Service Society Ltd v KC Alexander AIR 1968 SC 1165

11 Amarendra PratapSingh v Tej Bahadur Prajapati(2004) 10 SCC 65

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commences prescribing title into himself and such prescription having continuedfor a period of
12 years, he acquires title not on his own but on account of the default or inaction on part of the
real owner, which stretched over a period of 12 years results into extinguishing of the latter's
title."

JUSTIFICATION

The rationale for the concept rests on the belief that owing to the scarcity of land, its title must

not remain in doubt for long. Society will benefit from one making use of land that is left idle

by another, and the first person, in this case, must be protected if he has been the occupant of
the land for a considerable period. 12 The law only protects those who are vigilant, not those

that sleep over their rights.13 Jurist Henry W. Ballantine describes the purpose of adverse
possession as to "quite all titles which are openly and consistently asserted, to provide proof of
meritorious titles and correct errors in conveyancing". 14 In conclusion, the real aim of the law

is neither to punish the owner nor to reward a trespasser, but to rid the society from being
bothered by disputes for eternity. Hence the stipulated limitation provides for a time period
for quarrels and disputes to be settled within. 15

One aspect specific to India is the lack of practical documentation and digitalization of land
records. The multitude of people in the country, especially in rural areas, have legitimately

owned land for multiple generations whether by inheritance or purchase, but without proper
documentation and recognised title deeds. In the absence of such a law, such people will

become vulnerable to the authoritative actions of the state. The Bodo tribe's dislocation from

the land they had traditionally owned 16 is a glaring example of the possible consequences of

the complete abolition of adverse possession.

12 William B Stoebuck, 'The Law of Adverse Possession in Washington' (1960) 35(1) Washington Law Review 53
13 Team @Law Times Journal, 'Vigilantibus non dormientibus jura subveiunt' (Law Times Journal, 7 October
2019) <hP:: /lawtimesournail/ viilantiibusnon-dormientibus jubvenint!> accessed 18 May 2021
14 Henry W Ballantine, 'Title by Adverse Possession' (1918) 32(2) Harvard Law Review 135
15 Mani (n 1)
16 Chandan Kumar Sharma, 'Assam: Tribal Land Alienation' (2001) 36(52) Economic and Political Weekly

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 BHALLA: ADVERSE POSSESSION: RIGHT OR THEFT? - ANALYSIS OF PROPERTY LAW

Another line of argument in favour of such a law is squatters' rights in lieu of social justice. It

is an undisputable fact that a major portion of India's population lives in slums and jhuggis
without any title to that land. The state must consider the welfare of these people before

instituting any amendments to the law of adverse possession. It is further strengthened by the
fact that the UN has established the right to housing as an international human right 17 and the

apex court in India has also held the right to shelter as a fundamental right. 18

CRITICISM

Despite the numerous justifications, the fact is that the law seeks to punish non-diligent

owners of land who fail to ascertain their rights within a stipulated time period but conversely

also rewards any trespasser or wrong-doer, provided that his illegal possession satisfies the
time period. This forms the basis of the modern criticism of the concept of adverse possession

which is often referred to by legal scholars across the globe as legalised land theft and a means

of unjust enrichment. At the forefront of such criticism in India have been two leading

Supreme Court judgements, Hemaji Waghaji v. Bikhabhai Khengarbhai19 and State of Haryana v.
Mukesh Kumar20
.

Immoral Narrative - In the Hemaji case, the Supreme Court borrowed language from the High

Court of England in Pye Ltd. v. Graham21 to describe this law as irrational, illogical, and

disproportionately harsh towards the true owner and "a windfall for dishonest a person who
had taken illegal possession of the property". Moreover, in the Mukesh Kumar case, the court

deemed the law to be, "morally and logically speaking, baffling". It further went on to state the

dangerous precedent that such a law can and has set in the country where people attempt to
attain ownership of land with a dishonest intent via such a law. The worst of such cases is

when the very protectors of law become grabbers of land, leaving the victims of such acts

without any protection or viable remedy. This trend of individuals asserting interest over land

17 Brian Gardiner, 'Squatters' Rights and Adverse Possession: A Search for Equitable Application of Property
Laws' (1997) 8(1) Indiana International & Comparative Law Review 120
18 Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180
19 Hemaji Waghaji v Bikhabhai KhengarbhaiAIR 2009 SC 103
20 State of Haryanav Mukesh Kumar 2011 (10) SCC 404
21 Pye Ltd v Graham (2000) 3 WLR 242

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which they have possessed because it remains out of the attention of the legal owner not only

helps them evade eviction but also makes their claim legal, which was initially appropriated

illegally. It is indeed a dangerous narrative that needs an immediate fresh look and due
deliberation.

Human Rights Angle - It is also pertinent to note that while the Indian law on adverse

possession had developed from English laws, the former has seen very few changes to it since

its inception in the country whereas the latter has been changed and amended substantially to
reflect the existing socio-political climate, especially in view of the fact that property has been

adopted as a human right by the European Commission. 22 The same was most recently
reiterated in the Indian context by the Supreme Court in Vidaya Devi v. State of Himachal
Pradesh23 . Right to property might not be a fundamental right in the country (post the forty
fourth amendment)24 but it continues to be a human right in a welfare state and a

constitutional right guaranteed under Article 300 of the Constitution. No one can be deprived

of his/her property except in accordance with a procedure established by law, but what's
questionable is the fact that if the procedure laid down in the adverse possession laws really a

fair and just procedure?

Environmental Criticism - Another popular criticism of the concept comes from

environmentalists. Efforts to preserve wild lands through private ownership have only

accelerated in the past twenty years. Various conservation organisations and environmentally
concerned citizens with adequate resources have acquired huge spaces of natural land to
protect their natural inhabitants. Adverse possession threatens the existence and integrity of

these privately owned sanctuaries. The law is a pre-development nineteenth century ideology
that encourages the consumption of land and poses a threat to environmental concerns. Hence,

it is fundamentally antagonistic to the twentieth century concerns for preservation.25

22 Waghaji (n 19)
23 Vidaya Devi v State of HimachalPradesh Civil Appeal No 6061 of 2020
24 Constitution (Forty-Fourth Amendment) Act 1978
25 John G Sprankling, Environmental Critique of Adverse Possession, pg.817

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Shield or a Sword - One essential adverse possession in India was the fact that it could only be
used as a shield and not a sword. What this meant was that the person in possession could not
seek a declaration of title even after the adverse possession had matured into ownership. Only
if proceedings were filed against him could he use this as a shield/defence. 2 6 This was in line

with the negative view the courts had of this concept at the time as it pacified the law so as to

not be used as a sword instead. However, this was only the position up until the Ravinder Kaur
judgement 27, which held that once the title has been perfected by adverse possession, it can be
used both as a sword or a shield. This has created a situation where the doctrine is

strengthened by having a positive dimension to it by enabling it to be used offensively to file

suits, which is not desirable and is contradictory to the view of the court in judgements like the
Hemaji case (supra) and Mukesh Kumar case (supra).2 8 This also meant an increase in the
application of this principle as it is no more only defence and thus an increased number of
property disputes, which is again contradictory to the very object of such a law which is to
reduce these disputes instead.

CONCLUSION

It is clear that there is an increasingly negative view of adverse possession amongst the general

public as well as the judiciary. At the same time, it is difficult to argue for its complete

abolition in a country like India. What is needed instead is a fresh look upon the law by the
legislation so as to make it less harsh and fairer for the title owners of property without

disregard of the dependency of the rural population on this concept. These amendments must
be in line with the human rights and socio-political advancements that have taken place since

its first inception and must consider the points made by the apex court in the plethora of case
law on the subject. Changes might be of extreme urgency, but they themselves cannot be

extreme in nature, or else they will lead to more issues than they sought to extinguish.

26 GurudwaraSahib v Gram PanchayatVillage Sirthalaand Another 2014 (4) Mh L 74

27 Ravinder Kaur Grewal v Manjit Kaur (2019) 8 SCC 729
28 Milind Sharma, 'Comparative Study of Adverse Possession in India: Necessary Shield or Dangerous Sword?'
(1994) 79(4) Cornell Law Review 4
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SUGGESTIONS

Given the state of affairs pertaining to land ownership records and the interests of vulnerable

groups, it can be argued that adverse possession is a necessary evil that cannot be completely
abolished. 29 Keeping this in mind various suggestions were made by the apex court which is
worth considering. The first of these is for the parliament to consider abolishing adverse

possession in 'bad faith' i.e., adverse possession asserted via intentional trespassing.30 While
some claims based on such law may deserve to be recognized, it can at least be ensured that
possession based on dishonesty and foul means does not receive the same recognition in law.
Only those with established attachments to the land via honest means should be entitled to

relief. However, one must question if there can be a straight-forward way of separating cases

of 'good faith' occupations from those done with a 'bad/dishonest faith' considering the law

itself requires the possession to be 'hostile'. Another means of ensuring that the individuals

entitled to relief under this law are not trespassers but people who have lived on the land for

generations is simply increasing the limitation period from 12 years to a longer duration of 30-

50 years. This would also mean that only the most passive and unprotected owners lose their

title. Lastly, there could be a set price that has to be paid to acquire title by adverse possession,
which will be less than the market rate, to make the law less harsh towards the non-diligent

owners. In conclusion, the legislation will have to strike a balance between all the competing

considerations while amending any law relating to adverse possession.

29 Ibid 9
30 Waghaji (n 19)

85