Adverse possession

Kumar Doab (FIN) 30 October 2016

Post full facts of the matter.

Alternatively discuss with your own counsel with full case file.

Ms.Usha Kapoor (CEO) 31 October 2016

Supreme court in some of its recent decisions frowned upon doctrine of adverse possession equal to letting a rank tresspasser to claim rights due to his possession hostile to the true owner just for 12 years as per the Indian Law of asverse possession. In case of Government it is 30 years. The Law commission suggested that the adverse possession law should be amended to make it strong you need to make the holding period by prescripttion long, uninterrupted and peaceful ertc to the true owner from the current 12 years to 30 to 50 years and then true owner also would be debarred from exercising his rights of ownership AGAINST A AGOOD FAITH POSSESSOR WHO BONfide reasons occupied the land as against the true owner made .improvemnts etc to the land raised super structures on it and after 30 or 50 years the true owner surfaces the posseessors title as well as his possession becomes strong where even a true owner may also be defeated in acquring the land as law protects only the vigilant and not the indolent.If you appreciate this answer please clcik the thank you button on this forum.Now let us see some case law on adverse posssession.I underlined some operative portions of the Judgment which would be useful to you.the possession to become adverse to the owner must be so overt and open that the person against.Operative PARA 5.5 IS VERY IMPORTQNT FOR YOUR PURPOSE. PLEASE READ ON:

whom time runs, can, with exercise of reasonable diligence, be aware of what is happening.

3. Justification for adverse possession.

3.1

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 prescripttion 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.

3.2

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

possession.

4.2

The Supreme Court of India, has in two recent decisions, namely,

Hemaji Waghaji vs.

Bhikhabhai Khengarbhai

15

and

State of Haryana Vs. Mukesh Kumar

16

, 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

17

, 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.

4.3

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

15

AIR 2009 SC 103,

16

2011(10) SCC 404

17

(2000) 3 WLR 242

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.

5.1

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

19

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.

5.2

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

right. 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.

5.3

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

19

(2005) 49 ERG 90

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.

5.4

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.

5.5

In the latest case of

State of Haryana Vs. Mukesh Kumar

(

supra, 16

), 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

6.1

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 prescripttion over a 30-year period

if the possession is continuous, uninterrupted, peaceful, public and unequivocal. A reduced

prescripttion 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. Significant

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 prescripttion (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.

20

Most countries do maintain the doctrine of adverse

possession in respect of registered land. (e.g., UK, Australia, US and Newzealand) and Courts

20

See Report of the British Institute of International and Comparative Law for Her Majesty’s Court Services

(September 2006).

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

certain period. (

supra, 20)

6.2

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.

6.3

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.

(supra, 20)

7.

Abolition of adverse possession – pros and cons

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.

8.

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.

9.

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.

10

.

Having regard to the above legal and factual background and the views expressed by the

Supreme Court, it is considered necessary to get responses from the public, especially, the

Judges, lawyers, legal academia and bureaucracy on various issues concerning adverse

possession. A Questionnaire has been prepared and annexed herewith for this purpose.