Landmark Judgment - Supreme Court recommends Abolition of Adverse Possession

An important and extremely significant question has come before the Supreme Court recently in the case of State of Haryana v. Mukesh Kumar & Ors., where the issue ought to be resolved was -

"whether the State, which is in charge of protection of life, liberty and property of the people can be permitted to grab the land and property of its own citizens under the banner of the plea of adverse possession?"

In the instant case, recommendations have been made by the Supreme Court as regards abolition of the provision related to Adverse Possession, and if not that, the same should be amended.

Adverse possession, in its general sense, entitles a person to claim title over the property which does not belong to him when certain stipulations are satisfied. And, the same possession is authorised under the law. In the present case, a suit was filed by the state of Haryana ("State") in a civil court claiming the adverse possession over the property of the respondent ("Defendant" in the original suit. It was alleged 0n behalf of the defendant that the property, contrary to what was claimed by the state ("Respondent" in the present Special Leave Petition, and "Plaintiff" in the Original Suit), was not under the possession of the plaintiff for last 55 years and the same has been acquired by use of force. Trial Court found the claim of the plaintiff false, and thereby decreed in favour of the defendant. Further, the day on which possession became adverse was not mentioned by the plaintiff in the plea, and trial court finding this point important relied on S.M. Karim v. Mst. Bibi Sakina AIR 1964 SC 1254, wherein it had been held by the Supreme Court that

adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse. The Court also held that long possession is not necessarily adverse possession

Trial Court further opined that since no adverse possession could be proved by the plaintiff, it has no locus standi in the impugned suit. Appeal against the order of trial court was filed in the court of Addl. District Judge, who while dismissing the appeal relied on the decisions of Punjab and Haryana High Court in the case of Bhim Singh & Ors. v Zile Singh & Ors., AIR 2006 P and H 195 and Kanak Ram & Ors. v. Chanan Singh & Ors. (2007) 146 PLR 498 wherein it was held that a person in adverse possession of immovable property cannot file a suit for declaration claiming ownership and such a suit was not maintainable. Consequently, a second appeal was filed before the Punjab and Haryana High Court by the plaintiff, and High Court while dismissing the appeal was of the opinion that the state which is responsible for the protection of life and property of its citizens, is itself trying to grab the land of the defendant under the blanket of adverse possession.

Supreme Court, while dismissing the appeal discussed the historical background of the Adverse Possession, and also discussed the article of Neveda Law Journal, Making Sense Out of Nonsense: A Response to Adverse Possession by Governmental Entities' by Andrew Dickal. In the meantime, Supreme Court discussed its decision in In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Others (2009) 16 SCC 517(Para 24 and 26 to 29) -

24. In a relatively recent case in P.T. Munichikkanna Reddy v. Revamma (2007) 6 SCC 59, this Court again had an occasion to deal with the concept of adverse possession in detail. The Court also examined the legal position in various countries particularly in English and American systems. We deem it appropriate to reproduce relevant passages in extenso. The Court dealing with adverse possession in paras 5 and 6 observed as under: (SCC pp. 66-67)

5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird 100 So 2d 57 (Fla 1958), Arkansas Commemorative Commission v. City of Little Rock 227, Ark 1085 : 303 SW 2d 569 (1957); Monnot v. Murphy 207 NY 240 : 100 NE 742 (1913); City of Rock Springs v. Sturm 39 Wyo 494 : 273 P 908 : 97 ALR 1 (1929).)

6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p. 81. It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim.

26. 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 JA Pye (Oxford) Ltd. v. United Kingdom (2005) 49 ERG 90 which concerned the loss of ownership of land by virtue of adverse possession. In the said case, the applicant company was the registered owner of a plot of 23 hectares of agricultural land. The owners of a property adjacent to the land, Mr and Mrs Graham (the Grahams) occupied the land under a grazing agreement. After a brief exchange of documents in December 1983 a chartered surveyor acting for the applicants wrote to the Grahams noting that the grazing agreement was about to expire and requiring them to vacate the land. The Grahams continued to use the whole of the disputed land for farming without the permission of the applicants from September 1998 till 1999. In 1997, Mr Graham moved the Local Land Registry against the applicant on the ground that he had obtained title by adverse possession. The Grahams challenged the applicant company's claims under the Limitation Act, 1980 (the 1980 Act) which provides that a person cannot bring an action to recover any land after the expiration of 12 years of adverse possession by another.

27. The judgment was pronounced in JA Pye (Oxford) Ltd. v. Graham (2000) 3 WLR 242 : 2000 Ch 676. The Court held in favour of the Grahams but went on to observe the irony in law of adverse possession. The court observed that the law which provides to oust an owner on the basis of inaction of 12 years is illogical and disproportionate. The effect of such law would seem draconian to the owner and a windfall for the squatter. The court expressed its astonishment on the prevalent law that ousting an owner for not taking action within limitation is illogical. The applicant company aggrieved by the said judgment filed an appeal and the Court of Appeal reversed the High Court decision. The Grahams then appealed to the House of Lords, which, allowed their appeal and restored the order of the High Court.

28. The House of Lords in JA Pye (Oxford) Ltd. v. Graham (2003) 1 AC 419 : (2002) 3 WLR 221 : (2002) 3 All ER 865 (HL), observed that the Grahams had possession of the land in the ordinary sense of the word, and, therefore, the applicant company had been dispossessed of it within the meaning of the Limitation Act of 1980.

29. We deem it proper to reproduce the relevant portion of the judgment in P.T. Munichikkanna Reddy v. Revamma (2007) 6 SCC 59: (SCC p. 79, paras 51-52)

51.Thereafter the applicants moved the European Commission of Human Rights (ECHR) alleging that the United Kingdom law on adverse possession, by which they lost land 2to a neighbour, operated in violation of Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (`the Convention').

52. It was contended by the applicants that they had been deprived of their land by the operation of the domestic law on adverse possession which is in contravention with Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (`the Convention'), which reads as under:

`Every natural or legal person is entitled to the peaceful enjoyment of his possession. No one shall be deprived of his possession except in the public interest and subject to the conditions provided for by law and by the general principles of international law.The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.'

This Court in Revamma case also mentioned that the European Council of Human Rights importantly laid down three-pronged test to judge the interference of the Government with the right of peaceful enjoyment of property (SCC p. 79, para 53)

53. ... [In] Beyeler v. Italy [GC] No. 33202 of 1996 '' 108-14 ECHR 2000-I, it was held that the `interference' should comply with the principle of lawfulness and pursue a legitimate aim (public interest) by means reasonably proportionate to the aim sought to be realised.The Court observed:(Revamma case 79-80, paras 54-56)

54. ... `The question nevertheless remains whether, even having regard to the lack of care and inadvertence on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorized possession struck a fair balance with any legitimate public interest served.In these circumstances, the Court concludes that the application of the provisions of the 1925 and 1980 Acts to deprive the applicant companies of their title to the registered land imposed on them an individual and excessive burden and upset the fair balance between the demands of the public interest on the one hand and the applicants' right to the peaceful enjoyment of their possessions on the other. There has therefore been a violation of Article 1 of Protocol 1.'

55. The question of the application of Article 41 was referred for the Grand Chamber Hearing of the ECHR. This case sets the field of adverse possession and its interface with the right to peaceful enjoyment in all its complexity.

56. Therefore it will have to be kept in mind the courts around the world are taking an unkind view towards statutes of limitation overriding property rights.

Supreme Court further stated that Right to property is not only a constitutional right, but also it has been considered as a human Right (Beaulane Properties Ltd. v. Palmer (2005) 3 WLR 554 Discussed). Supreme Court recommend the abolition of the concept of Adverse Possession, or at least the same shall be amended by the parliament and make the requirement of at least 30-50 years. Adverse possession is being claimed intentionally by the person who does not have any kind of right whatsoever over the property. Important portion of the judgement where Supreme Court made recommendations can be read as -

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.

Eventually, Petition was dismissed by the Supreme Court