Sunday, 27 April 2014

Whether Possession Is Nine Points of Law?

The claim to rights and interests in relation to property on the basis of possession has
been recognized in all legal systems. Uninterrupted and uncontested possession for a specified
period, hostile to the rights and interests of true owner, is considered to be one of the legally
recognized modes of acquisition of ownership. The prescription of periods of limitations for
recovering possession or for negation of the rights and interests of true owner is the core and
essence of the law of adverse possession. Right to access to Courts is barred by law on effluxion
of prescribed time. The conditions necessary for the acceptance of a claim based on adverse
possession have been laid down basically by way of Judge-made law. Several exceptions to the
concept of adverse possession based on legal relationship between the title holder and the person
in actual possession as well as the character of land are also recognized by law. Permissive
possession or possession without a clear intention to exercise exclusive rights over the property
is not considered as adverse possession.

2. The legal position and principles governing adverse possession.
2.1 As observed by the Supreme Court of India in the case of Karnataka Board of Wakf Vs.
GOI,( 2004) 10 SCC 779in the eye of law, an owner would be deemed to be in possession of a property so long as
there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his
title. But the position will be altered when another person takes possession of the property and
asserts rights over it and the person having title omits or neglects to take legal action against
such person for years together( emphasis supplied). “The process of acquisition of title by
adverse possession springs into action essentially by default or inaction of the owner”. 

 Amrendra Pratap Singh vs. Tej Bahadur Prajapati, (2004) 10 SCC 65
 The essential requisites to establish adverse possession are that the possession of the adverse
possessor must be neither by force nor by stealth nor under the license of the owner. It must be
adequate in continuity, in publicity and in extent to show that the possession is adverse to the
paper owner.

The law on adverse possession is contained in the Indian Limitation Act. Article 65,
Schedule I of The Limitation Act prescribes a limitation of 12 years for a suit for possession of
immovable property or any interest therein based on title. It is important to note that the starting
point of limitation of 12 years is counted from the point of time “when the possession of the
defendants becomes adverse to the plaintiff”. Article 65 is an independent Article applicable to
all suits for possession of immovable property based on title i.e., proprietary title as distinct from
possessory title. Article 64 governs suits for possession based on possessory right. 12 years
from the date of dispossession is the starting point of limitation under Article 64. Article 65 as
well as Article 64 shall be read with Section 27 which bears the heading – “Extinguishment of
right to property”. It lays down:
“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
That means, where a cause of action exists to file a suit for possession and if the suit is not filed
within the period of limitation prescribed, then, not only the period of limitation comes to an end,
but the right based on title or possession, as the case may be, will be extinguished. The section
assists the person in possession to acquire prescriptive title by adverse possession 3 U.N. Mitra’s Law of Limitation & Prescription, 13th edition, 2011. Vol. I, revised by Justice S A Kader, P.732
When the
title to property of the previous owner is extinguished, it passes on to the possessor and the

possessory right gets transformed into ownership. [Section 27] is an exception to the well
accepted rule that limitation bars only the remedy and does not extinguish the title. It lays down
a rule of substantive law by declaring that after the lapse of the period, the title ceases to exist
and not merely the remedy. It means that since the person who had a right to possession has
allowed his right to be extinguished by his inaction, he cannot recover the property from the
person in adverse possession and as a necessary corollary thereto, the person in adverse
possession is enabled to hold on to his possession as against the owner not in possession.

As far as the Government (Central or State) property is concerned, the period of limitation
for any suit (except a suit before the Supreme Court) is 30 years and the starting point of
limitation is the same as in the case of a suit by a private person (vide Article 112, Schedule I of
Limitation Act). Acquisition of easements by prescription is provided for by Section 25 of The
Limitation Act.

The legal position as regards the acquisition of title to land by adverse possession has
been succinctly stated by the Judicial Committee of the Privy Council in Perry vs. Clissold (1907) AC 73, at 79
“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 for ever extinguished and the possessory owner acquires an
absolute title.”
4 Valliamma Champaka vs Sivathanu Pillai (1964) 1 MLJ, 161 (FB)

This statement of law has been accepted by the Supreme Court of India in the case of
Nair Service Society Ltd. vs. K.C. Alexander  AIR 1968 SC 1165 The Bench consisting of three Judges observed
“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.”

It was clarified by a three-Judge Bench of the Supreme Court in Kshitish Chandra Bose
v. Commissioner of Ranchi, AIR 1981 SC 707“All that the law requires is that the possession must be open and
without any attempt at concealment. It is not necessary that the possession must be so effective
so as to bring it to the specific knowledge of the owner. Such a requirement may be insisted on
where an ouster of title is pleaded, but that is not the case here.” It was also clarified in a series
of decisions that while possession shall be open and exclusive and in assertion of one’s own
right, the fact that the possessor did not know who the real owner was, will not make his
possession any the less adverse. There are certain passing observations in some judgments of the
Supreme Court rendered by two learned Judges that the plea of adverse possession is not

available if the adverse possessor does not know who the true owner is; but, the law declared by
the larger Bench decisions of the Supreme Court obviously prevails.

The intention to exclude others from the control of property is an essential element of
factual possession. The intention to possess the property exclusively implies the intention to
exclude all others including the true owner whether known or unknown to the adverse possessor.
In an article written by Justice (retd.) S.A. Kader – “Law of Adverse Possession in India –
Recent Trends Unsettling the Law”8 Annexure II to Volume II of U.N. Mitra’s Law of Limitation, 13th Edn the learned author pointed out that the attempted distinction
made in P.T. Munichikkanna Reddy vs. Revamma(2007) 6 SCC 59 between the ‘intention to possess’ and
‘intention to dispossess’ is not in conformity with the settled law and that both these concepts
are correlative to each other. The following statement of law by Slade, J on “intention to
possess” has been approved by House of Lords in JA Pye (Oxford) Ltd. Vs. Graham 2003 1AC 419
“What is really meant, in my judgment, is that the animus possidendi involves
the intention, in one’s own name and on one’s own behalf, to exclude the world at
large, including the owner with the paper title if he be not himself the possessor, so far
as is reasonably practicable and so far as the processes of the law will allow.”

In The Secretary of State vs. Vira RayanILR 9 Mad. 175, a Division Bench of Madras High Court
rightly pointed out that the ignorance of the owner will not prevent the accrual of a title by
prescription. The possession must be open and hostile enough to be capable of being known by
the parties interested in the property (vide T. Anjanappa vs. Somalingappa).2006 (7)SCC 570

In other words,
the possession to become adverse to the owner must be so overt and open that the person against
whom time runs, can, with exercise of reasonable diligence, be aware of what is happening.

Justification for adverse possession.
The rationale for adverse possession rests broadly on the considerations that title to land
should not long be in doubt, the society will benefit from some one making use of land the owner
leaves idle and that that persons who come to regard the occupant as owner may be protected. 13
The maxim that law and equity does not help those who sleep over their rights is invoked in
support of prescription of title by adverse possession. In other words, the original title holder
who neglected to enforce his rights over the land cannot be permitted to re-enter the land after a
long passage of time. A situation lasting for a long period creates certain expectations and it
would be unjust to disappoint those who trust on them.

The ‘great’ purpose of adverse possession as described by a jurist Henry W. Ballantine in
his article “Title by Adverse Possession,”14 “is automatically to quiet all titles which are openly
and consistently asserted, to provide proof of meritorious titles and correct errors in
conveyancing”. Another justification for the law of adverse possession is captured in the quote
that possession is “nine points of the law”. The moral justification of the law of adverse
possession was graphically stated by Justice O.W. Holmes who said “man like a tree in the cleft
of a rock, gradually shapes his roots to the surroundings, and when the roots have grown to a
certain size, can’t be displaced without cutting at his life,”.
4. Criticism of adverse possession and the plea to have a fresh look.
4.1 Some legal scholars in foreign countries have pleaded for abolition of adverse possession
describing it as legalized land theft and a means of unjust enrichment. It has also been pointed
13 William B Stoebuck, “The Law of Adverse Possession in Washington”, (1960) 35 Wash. L. Rev. 53.
14 32 HLR 135
out that there is no certainty in the law of adverse possession and the courts in several cases have
wrestled with the meaning of the expressions – actual, continuous, open, hostile and exclusive

The Supreme Court of India, has in two recent decisions, namely, Hemaji Waghaji vs.
Bhikhabhai Khengarbhai AIR 2009 SC 103, and State of Haryana Vs. Mukesh Kumar 2011(10) SCC 404,  has pointed out the need
to have a fresh look at the law of adverse possession.
Borrowing the language from the
judgment of the High Court (Chancery Division) of England in J.A. Pye (Oxford) Ltd. vs.
Graham (2000) 3 WLR 242, the Supreme Court in the former case, described the law of adverse possession as
irrational, illogical and wholly disproportionate and extremely harsh for the true owner “and a
windfall for dishonest person who had illegally taken possession of the property”. The Supreme
Court, after extensively quoting from P. T. Munichikkanna Reddy vs. Revamma (supra, 9)
reiterated the observation therein that “with the expanding jurisprudence of the European Court
of Human Rights, the Court has taken an unkind view to the concept of adverse possession in the
recent judgment of J.A. Pye (Oxford) Vs. United Kingdom”. The Court was not aware that the
said judgment of ECHR has not been approved by the Grand Chamber consisting of a larger
Bench, on a reference made to it in the same case.
In Hemaji Waghaji’s case, the Supreme Court held on the facts that the appellant had
miserably failed to prove adverse possession. However, the Court went further and made the
following observations at paragraphs 34 to 36 (of AIR).
“34. 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.
35. 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.
36. 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.”
5. The two decisions of Supreme Court – critical analysis and closer look.
In Hemaji Waghaji case, the court extensively referred to the earlier decision in P.T.
Munichikkanna Reddy vs. Revamma (supra, 9) and placed heavy reliance on ECHR decision in
J.A. Pye Oxford Vs. United Kingdom. Practically, the words employed by the learned trial
Judge Neuberger, J in J.A. Pye (Oxford) vs. Grahams 18 and the European Court of Human
18(2000) 3 WLR 242
Rights (ECHR) in J.A. Pye (Oxford) Ltd. vs. United Kingdom (2005) 49 ERG 90 have been repeated in the
concluding paragraph. The fact that by the time Hemaji Waghaji’s case was decided, the Grand
Chamber of ECHR delivered its judgment on 30 th August, 2007 disapproving the ratio of the
2005 decision of ECHR in the case between the same parties was not brought to the notice of the
learned Judges of Supreme Court. The Grand Chamber of the ECHR examined the legislation
relating to adverse possession from the point of view of the objective of the law, the principles
of proportionality and fair balance and held that the existence of the limitation period for actions
for recovery of land as such pursues a legitimate aim and that the fair balance required by Article
1, Protocol No. 1 to the Convention was not upset by the law dealing with adverse possession.

Another aspect which needs to be mentioned in this context is that it is not clear from the
decision of the Supreme Court in Revamma and Hemaji as to what difference would it make if
the right to property is considered to be human right apart from being a constitutional or statutory
In Revamma, it was merely clarified that property dispute issues including adverse
possession is being examined by the European Human Rights Courts on the premise that it is a
human right. The ultimate decision in both the cases decided by the Supreme Court turned on
the facts of the case i.e., whether there was enough evidence to substantiate the plea of adverse
possession and that was answered in the negative.

It is interesting to note that the Northern Ireland Law Commission in its Report on Land
Law [NILC8 (2010] had expressed the view that in the light of the decision of the Grand
Chamber of the European Court of Human Rights in the case of J.A. Pye (Oxford) Ltd. Vs. U.K.,
the human rights issues relating to the doctrine of adverse possession have been put to rest for
the time being and should not be pursued further.

The consultees were unanimously in
agreement with the Law Commission that the doctrine of adverse possession should be reained to
enable a squatter to acquire the title of a dispossessed owner after the expiration of the specified
period of limitation.

On a close and fair reading of the judgment in Hemaji’s case and even the latter case in
State of Haryana Vs. Mukesh Kumar (supra, 16), it is fairly clear that the Court deprecated the
law in so far as it benefits a rank trespasser who had wrongfully taken possession of the property
belonging to another. The observations in para 35 reinforces this view point quite clearly. A
rank trespasser is thus frowned upon.
So, it needs to be seriously examined whether the
protection should be extended to a naked and dishonest trespasser and to those who may have
purchased the property from such trespasser. While claims based on adverse possession may
deserve to be recognized, it can still be ensured that the possession originating from dishonesty
and foul means does not receive the same recognition in law.

In the latest case of State of Haryana Vs. Mukesh Kumar (supra, ), there is a trenchant
criticism of the doctrine of adverse possession. The same learned Judge who authored the
judgment in Hemaji’s case reiterated what was said earlier after referring to the English cases and
made certain important observations which need to be taken note of. That was a case in which
the State of Haryana (Police Department) set up the plea of adverse possession which was not
accepted by the trial court and appellate court on a review of evidence. The learned Judge
Dalveer Bhandari, J speaking for the Bench, described the law of adverse possession as archaic
and “needs a serious relook” in the larger interest of the people. It was observed: “Adverse
possession allows a trespasser – a person guilty of a tort, or even a crime, in the eye of the 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. The doctrine of adverse possession
has troubled a great many legal minds. We are clearly of the opinion that time has come for
change.” The learned Judge posed a question: “How 12 years of illegality can suddenly be
converted to legal title is, logically and morally speaking, baffling” and then observed “We are
clearly of the opinion that time has come for change”. The observations made earlier at
paragraph 39 are also relevant. “The Government instrumentalities – including Police – in the
instant case have attempted to possess land adversely. This, in our opinion, is a testament to the
absurdity of the law and a black mark upon the justice system’s legitimacy”. Then, it was said
“if this law is to be retained according to the wisdom of Parliament, then at least the law must
require those who adversely possess land to compensate the title owners according to the
prevalent market rate of the land or property.” Then at paragraph 40, it was observed that
Parliament must seriously consider at least to abolish “bad faith” adverse possession i.e., adverse
possession achieved through intentional trespassing. At paragraph 41, it was also observed that
if the Parliament decides to retain the law of adverse possession, the duration of possession (i.e.,
limitation period) under the law of Limitation should be extended to 30 to 50 years, “rather than
a mere 12”. It was pointed out that “a longer statutory period would 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.” In the
penultimate paragraph, the Court said “we recommend the Union of India to immediately
consider a seriously deliberate either abolition of law of adverse possession and in the alternate,
to make suitable amendments in the law of adverse possession”.
6. Position in other countries
The acquisition of land under the doctrine of adverse possession is recognized in all the
civil and common law jurisdictions. The concept and elements of adverse possession are almost
the same. However, there is no clear pattern as regards the length of limitation periods. The
period after which the real owner may no longer bring an action to repossess her land varies from
10 years to 30 years. In the case of claims by the Crown (State) in most of the countries, it is 60
years. Proof of good faith on the part of the possessor of the land will significantly reduce the
limitation period in some jurisdictions such as France, Spain, The Netherlands and Poland. For
instance, French law permits the acquisition of title to land by prescription over a 30-year period
if the possession is continuous, uninterrupted, peaceful, public and unequivocal. A reduced
prescription period of ten years is provided if the possessor had acted in good faith and in
genuine belief of the existence of a just title. However, if the true owner does not live within the
district of the Court of Appeal, then the period is extended by twice the number of years i.e., 20
years. In some countries, e.g., Hungary, Germany, Massachusetts/US, the evidence of good faith
is not a relevant consideration. The application of the doctrine of adverse possession as well as
the duration of possession also depends on whether the land is registered or not.
differences in the application of adverse possession arise where the States have adopted the
system of land registration. Where the title to land is registered, some States have abolished the
capacity to acquire land by prescription (e.g., Canada) while retaining the right in respect of
unregistered land.
This difference reflects the policy that the uncertainty of ascertaining
ownership is eliminated by a system of registration so that the rationale for the doctrine of
adverse possession is thereby weakened.See Report of the British Institute of International and Comparative Law for Her Majesty’s Court Services
(September 2006). Most countries do maintain the doctrine of adverse
possession in respect of registered land. (e.g., UK, Australia, US and Newzealand) and Courts

continue to recognize the public policy value of extinguishing title to registered property after a
certain period.

In UK, the acquisition of land by adverse possession is governed by the Limitation Act of
1980 and the Land Registration Act of 2002 which repealed the earlier Act of 1925. The
Limitation Act of 1980 provides that no action shall be brought by any person to recover any
land after the expiration of twelve (12) years from the date on which the right of action accrued
to him. The right of action shall be treated as having accrued on the date of dispossession or
discontinuance. It made no distinction between registered and unregistered land. S.17 of the said
Act provided that on the expiry of limitation regulating the recovery of land, the title of the paper
owner was extinguished. Section 75(1) of Land Registration Act, 1925 however, provided that on
the expiry of the limitation period, the title was not extinguished, but the registered proprietor
was deemed to hold the land thereafter in trust for the squatter. The Land Registration Act of
2002 (which repealed the 1925 Act) made a number of changes to the law as it related to
registered land. It provided that adverse possession for however long would not of itself bar the
owner’s title to a registered land. However, a squatter is entitled to apply to be registered as
proprietor after ten (10) years and a procedure is prescribed for dealing with such application.

In US, all States within the Federation recognize title acquired by adverse possession
after limitation periods ranging from 5 to 40 years. In addition to varying time limitations, there
are differences among the States as to the role of good faith as a necessary condition for adverse
possession and as to certain categories of land type and use. Most of the jurisdictions in US do
not require an element of good faith in cases of actual and uninterrupted possession. 
7. Abolition of adverse possession – pros and cons

One view point which has considerable merit is that the wholesale abolition of adverse
possession would trigger practical problems affecting common people and bona fide possessors
of property who may have no title documents. Multitude of people especially those in rural areas
belonging to agriculturist families remain in possession since long whether by virtue of
inheritance, purchase or otherwise without having valid and legally recognized title deeds. The
lack of a legal regime under which the titles are registered and the shoddy manner in which the
land records are maintained by the concerned Departments of Government has made it difficult
to those entering into land deals to know even through reasonable diligence the true owner of
land and the history of ownership. People in rural areas live in their ancestral houses or enjoy
possessory rights over parcels of land from times immemorial, bona fide believing that they or
their ancestors are the true owners of land. There is no means of knowing whether the land in
question is Government land or the land over which the Government has a right of resumption or
some one else has superior title over land. At least the ordinary people do not know. Even
legitimate owners who may have only the element of possession as the foundation for assuming
or defending their rights may suffer if the concept of adverse possession is abolished or allowed
to remain under stringent conditions. That the possession is “nine points of law” applies with
great force to such category of persons.

On the other hand, the question may be legitimately asked as to why those who grab the
land overnight by force or otherwise without semblance of bona fides and without color of title
should be allowed to get title by adverse possession?
Why should land theft or grabbing be
made the basis for deriving title by reason of open, hostile enjoyment for a long period? Should
not the conduct of occupier of land be taken into account? Further, what about those owners of
property who may not be physically available to evince an intention towards disrupting hostile
possession. These questions do arise. In the ultimate analysis, there is perhaps a need to strike a
fair balance between competing considerations in the process of considering the changes in law
if any.
A representation has been made to the Central Government by Pravasi Properties
Protection Council (PROP), Sion, Mumbai stating inter-alia that adverse possession has become
a handy tool to the relatives and neighbours to occupy the NRI’s properties with the aid of
village officers who are instrumental in effecting changes in land records. They suggest the
abolition of law of adverse possession and to check the menace of trespassers.
It is not
specifically indicated as to how such problems of NRIs could be adequately taken care of by
abolishing adverse possession. However, the need to devise some special measures for
protection/restoration of properties owned by NRIs deserve due consideration.
On the basis of informations received from the High Courts in U.P., Mahrashtra, Delhi,
Gujarat, Assam and other NE States, Kerala, Madhya Pradesh, Odisha, Bihar and Rajasthan,
there are about 52430 cases in which the plea of adverse possession has been raised in the suits
before the trial courts pending at the end of the year 2010. Information has not been received
from other High Courts. However, it can be estimated that only in about 80,000 cases, the plea
of adverse possession has been raised in the pending matters. In the course of interaction with
the judicial officers and lawyers in some places, it has come to light that the plea of adverse
possession though raised is quite often not pursued and hardly any evidence is adduced thereon.

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