in his favour since he is trying to defeat the rights of the
true owner. It is for him to clearly plead and establish all
facts necessary to establish adverse possession. Though we
got this law of adverse possession from the British, it is
important to note that these days English Courts are taking
a very negative view towards the law of adverse possession.
The English law was amended and changed substantially to
reflect these changes, particularly in light of the view that
property is a human right adopted by the European
Commission. This Court in Revamma (supra) observed
that to understand the true nature of adverse
possession, Fairweather v. St Marylebone Property
Co [1962] 2 WLR 1020 : [1962] 2 All ER 288 can be 1
considered where House of Lords referring
to Taylor v. Twinberrow [1930] 2 K.B. 16 termed adverse
possession as a negative and consequential right effected
only because somebody else's positive right to access the
court is barred by operation of law. As against the 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.
36. The right to property is now considered to be not only
constitutional or statutory right but also a human right.
Human rights have already been considered in realm of
individual rights such as right to health, right to livelihood,
right to shelter and employment etc. But now human rights
are gaining a multi faceted dimension. Right to property is
also considered very much a part of the new dimension.
Therefore, even claim of adverse possession has to be read
in that context.
37. The changing attitude of the English Courts is quite
visible from the judgment of Beaulane Properties Ltd. v. 1
Palmer (2005) 3 WLR 554. The Court here tried to read the
human rights position in the context of adverse possession.
But what is commendable is that the dimension of human
rights have widened so much that now property dispute
issues are also being raised within the contours of human
rights. With the expanding jurisprudence of the European
Courts of Human Rights, the Court has taken an unkind
view to the concept of adverse possession.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
PETITION FOR SPECIAL LEAVE TO APPEAL (CIVIL) NO.
28034/2011
(Arising out of CC 9038/2010)
State of Haryana V Mukesh Kumar & Ors.
Dated;September 30, 2011
Dalveer Bhandari, J.
Citation: AIR2012SC559,(2011)10SCC404,
1. People are often astonished to learn that a
trespasser may take the title of a building or land from
the true owner in certain conditions and such theft is
even authorized by law.
2. The theory of adverse possession is also perceived
by the general public as a dishonest way to obtain title
to property. Property right advocates argue that
mistakes by landowners or negligence on their part
should never transfer their property rights to a 2
wrongdoer, who never paid valuable consideration for
such an interest.
3. The government itself may acquire land by adverse
possession. Fairness dictates and commands that if the
government can acquire title to private land through
adverse possession, it should be able to lose title under
the same circumstances.
4. We have heard the learned counsel for the State of
Haryana. We do not deem it appropriate to financially
burden the respondents by issuing notice in this Special
Leave Petition. A very vital question which arises for
consideration in this petition is 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?
5. Brief facts, relevant to dispose of this Special Leave
Petition are recapitulated as under:
6. The State of Haryana had filed a Civil Suit through the
Superintendent of Police, Gurgaon, seeking a relief of
declaration to the effect that it has acquired the rights of 3
ownership by way of adverse possession over land
measuring 8 biswas comprising khewat no. 34, khata no.
56, khasra no. 3673/452 situated in the revenue estate of
Hidayatpur Chhavni, Haryana.
7. The other prayer in the suit was that the sale deed
dated 26th March, 1990, mutation no. 3690 dated 22nd
November, 1990 as well as judgment and decree dated 19th
May, 1992, passed in Civil Suit No. 368 dated 9th March,
1991 are liable to be set aside. As a consequential relief, it
was also prayed that the defendants be perpetually
restrained from interfering with the peaceful possession of
the plaintiff (petitioner herein) over the suit land. For the
sake of convenience we are referring the petitioner as the
plaintiff and the respondents as defendants.
8. In the written statement, the defendants raised a
number of preliminary objections pertaining to estoppel,
cause of action and mis-joinder of necessary parties. It was
specifically denied that the plaintiff ever remained in
possession of the suit property for the last 55 years. It was
submitted that the disputed property was still lying vacant.
However, the plaintiff recently occupied it by using force and 4
thereafter have also raised a boundary wall of police line. It
was denied in the written statement that the plaintiff
acquired right of ownership by way of adverse possession
qua property in question. The defendants prayed for
dismissal of suit and by way of a counter claim also prayed
for a decree for possession qua suit property be passed.
9. The Trial Court framed the following Issues in the suit.
1. Whether plaintiffs have become owner of disputed
property by way of adverse possession? OPP
2. Whether sale deed 26.3.1990 and mutation no.
3690 dated 22.11.90 are null and void as alleged?
OPP
3. Whether judgment and decree dated 19.05.92
passed in civil suit no. 368 dated 9.3.91 is liable to
be set aside alleged? OPP
4. Whether the suit of the plaintiff is not maintainable
in the present form? OPP
5. Whether the plaintiff has no locus-standi to file the
present suit? OPP
6. Whether the plaintiff has no cause of action to file
the present suit? OPP
7. Whether the suit of the plaintiff is bad for misjoinder
of necessary parties? OPP
8. Whether defendants no. 1 to 4 are rightful owners of
disputed property on the basis of impugned sale
deed dated 23.6.1990 registered on 3.7.1990? OPP 5
9. Whether defendants are entitled for possession of
disputed property? OPP
10. Relief.
10. Issue No. 1 which relates to adverse possession and
issue No. 4 pertaining to maintainability were decided
together. According to the Trial Court, the plaintiff has
failed to prove the possession over the disputed property
because the plaintiff could not produce any documentary
evidence to prove this. On the contrary, revenue records
placed on the file shows that the defendants are the owners
in possession of disputed property. The Trial Court
observed that possession of State, as claimed in the plaint
for a continuous period of 55 years, stood falsified by the
documents issued by the officials of the State.
11. The Trial Court also observed that despite claiming
adverse possession, there was no pleading qua denial of title
of the defendants by the plaintiff, so much so that the
specific day when the alleged possession of State allegedly
became adverse against the defendants has not been
mentioned in order to establish the starting point of
limitation could be ascertained. 6
12. The Trial Court relied on the judgment of this Court in
S.M. Karim v. Mst. Bibi Sakina AIR 1964 SC 1254
wherein this Court has laid down that the 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.
13. The Trial Court also relied on a decision of the High
Court of Punjab and Haryana in the case of Bhim Singh &
Ors. v. Zile Singh & Ors., AIR 2006 P and H 195,
wherein it was stated that no declaration can be sought by a
plaintiff with regard to the ownership on the basis of
adverse possession.
14. The Trial Court came to specific conclusion that
despite the fact that the possession of the plaintiff over the
disputed land is admitted on behalf of defendants, Issue No.
1 stand decided against the plaintiff. It was held that the
suit of the plaintiff claiming ownership by way of adverse
possession is not maintainable. Consequently, Issue No. 1
was decided against the plaintiff and Trial No. 4 was decided
in favour of the defendants. 7
15. The Trial Court decided Issue Nos. 2, 3, 5 and 6
together and came to the definite conclusion that the
plaintiff failed to prove its possession over the property in
question. It was also held that the plaintiff had no locus
standi to challenge the validity of the impugned sale deed,
mutation as well as the judgment and decree because the
plaintiff was neither the owner nor in possession of the
property in dispute. Consequently, the plaintiff had no right
to say that the impugned sale deed dated 26th March, 1990
was a sham transaction and the suit of mutation dated 22nd
November, 1990 and, thereafter, the judgment and decree
dated 19th May, 1992 passed in Civil Suit No. 386 dated 9th
March, 1991 are liable to be set aside.
16. The Trial Court came to the conclusion that the
plaintiff having no right or title in the suit property has
neither locus standi nor cause of action to file the present
suit. Issue Nos. 2 and 3 were decided against the plaintiff,
whereas, Issue Nos. 5 and 6 were decided in favour of the
defendants.
17. Regarding Issue Nos. 8 and 9, the Trial Court observed
that once it is held that defendant Nos. 1 to 4 are owners of 8
the disputed property, which is presently in possession of
the plaintiff without any right, they (defendants) are entitled
to its possession. Hence, Issue Nos. 8 and 9 were also
decided in favour of the defendants.
18. Issue No. 7 was not pressed and decided against the
defendants.
19. Regarding Issue No. 10 (relief) the Trial Court observed
as under:
“As a sequel to the findings of this
court on the issues mentioned above, the
suit of the plaintiff stands dismissed,
however, counter claim filed by
defendants is decreed with costs to the
effect that they are entitled to possession
of land measuring 8 biswas comprising of
khewat no. 34 khata no. 56 khasa no.
3673/452 situated in revenue estate of
Hidayatpur Chhavni village now the part
of known as Patel Nagar, Gurgaon.
Decree sheet be drawn accordingly. File
be consigned to the record room after due
compliance.”
20. The plaintiff, aggrieved by the judgment of the Trial
Court filed an appeal (Civil Appeal No. 33) before the learned
Additional District Judge, Gurgaon. Learned Additional
District Judge while deciding the appeal, relied on the
judgment of the Punjab & Haryana High Court delivered in 9
the case of Food Corporation of India and Another v.
Dayal Singh 1991 PLJ 425, wherein it was observed that it
does not behove the Government to take the plea of adverse
possession against the citizens.
21. Learned Additional District Judge also relied on other
judgments of Punjab & Haryana High Court in the cases of
Bhim Singh & Ors. (supra) 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.
22. Before parting with the judgment the learned
Additional District Judge observed regarding conduct of the
plaintiff that the present suit was filed by State of Haryana
by the then Superintendent of Police, Gurgaon on 11th May,
1996. It was also observed by the learned Additional
District Judge that the Police department is for the
protection of the people and property of the citizens and the
police department had unnecessarily dragged the
defendants in unnecessary litigation. The appeal was
dismissed with exemplary cost of Rs.25,000/-. 1
23. Unfortunately, despite serious strictures passed by the
Court, the State of Haryana did not learn a lesson and
preferred a Second Appeal (RSA No. 3909 of 2008) before
the High Court of Punjab and Haryana, Chandigarh against
the judgments and decrees of the two courts below.
24. The High Court, relying on the earlier judgments,
observed that the welfare State which was responsible for
the protection of life and property of its citizens, was in the
present case, itself trying to grab the land/property of the
defendants under the garb of plea of adverse possession and
hence the action of the plaintiff is deplorable and
disgraceful.
25. Unfortunately, the State of Haryana, is still not
satisfied with the three strong judgments by three different
forums given against the State and is still quite anxious and
keen to grab the property of the defendants in a clandestine
manner on the plea of adverse possession.
26. In a democracy, governed by rule of law, the task of
protecting life and property of the citizens is entrusted to
the police department of the government. In the instant
case, the suit has been filed through the Superintendent of 1
Police, Gurgaon, seeking right of ownership by adverse
possession.
27. The revenue records of the State revealed that the
disputed property stood in the name of the defendants. It is
unfortunate that the Superintendent of Police, a senior
official of the Indian Police Service, made repeated attempts
to grab the property of the true owner by filing repeated
appeals before different forums claiming right of ownership
by way of adverse possession.
28. The citizens may lose faith in the entire police
administration of the country that those responsible for the
safety and security of their life and property are on a spree
of grabing the properties from the true owners in a
clandestine manner.
29. A very informative and erudite Article was
published in Neveda Law Journal Spring 2007 with the
title ‘Making Sense Out of Nonsense: A Response to
Adverse Possession by Governmental Entities’. The
Article was written by Andrew Dickal. Historical
background of adverse possession was discussed in that
article. 1
Historical background
30. The concept of adverse possession was born in
England around 1275 and was initially created to allow
a person to claim right of “seisin” from his ancestry.
Many felt that the original law that relied on “seisin”
was difficult to establish, and around 1623 a statue of
limitations was put into place that allowed for a person
in possession of property for twenty years or more to
acquire title to that property. This early English
doctrine was designed to prevent legal disputes over
property rights that were time consuming and costly.
The doctrine was also created to prevent the waste of
land by forcing owners to monitor their property or
suffer the consequence of losing title.
31. The concept of adverse possession was
subsequently adopted in the United States. The
doctrine was especially important in early American
periods to cure the growing number of title disputes.
The American version mirrored the English law, which
is illustrated by most States adopting a twenty-year 1
statue of limitations for adverse possession claims. As
America has developed to the present date, property
rights have become increasingly more important and
land has become limited. As a result, the time period to
acquire land by adverse possession has been reduced in
some States to as little as five years, while in others, it
has remained as long as forty years. The United States
has also changed the traditional doctrine by preventing
the use of adverse possession against property held by a
governmental entity.
32. During the colonial period, prior to the enactment
of the Bill of Rights, property was frequently taken by
states from private land owners without compensation.
Initially, undeveloped tracts of land were the most
common type of property acquired by the government,
as they were sought for the installation of public road.
Under the colonial system it was thought that benefits
from the road would, in a newly opened country, always
exceed the value of unimproved land. 1
33. The doctrine of adverse possession arose in an era
where lands were vast particularly in the United States of
America and documentation sparse in order to give quietus
to the title of the possessor and prevent fanciful claims from
erupting. The concept of adverse possession exits to cure
potential or actual defects in real estate titles by putting a
statute of limitation on possible litigation over ownership
and possession. A landowner could be secure in title to his
land; otherwise, long-lost heirs of any former owner,
possessor or lien holder of centuries past could come
forward with a legal claim on the property. Since
independence of our country we have witnessed registered
documents of title and more proper, if not perfect, entries of
title in the government records. The situation having
changed, the statute calls for a change.
34. In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai
Harijan and Others (2009) 16 SCC 517 (one of us
Bhandari, J.), this Court had an occasion to examine the
English and American law on “adverse possession”. The
relevant paras of that judgment (Paras 24 and 26 to 29) are
reproduced as under: 1
“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 1
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.”
35. A person pleading adverse possession has no equities
in his favour since he is trying to defeat the rights of the
true owner. It is for him to clearly plead and establish all
facts necessary to establish adverse possession. Though we
got this law of adverse possession from the British, it is
important to note that these days English Courts are taking
a very negative view towards the law of adverse possession.
The English law was amended and changed substantially to
reflect these changes, particularly in light of the view that
property is a human right adopted by the European
Commission. This Court in Revamma (supra) observed
that to understand the true nature of adverse
possession, Fairweather v. St Marylebone Property
Co [1962] 2 WLR 1020 : [1962] 2 All ER 288 can be 1
considered where House of Lords referring
to Taylor v. Twinberrow [1930] 2 K.B. 16 termed adverse
possession as a negative and consequential right effected
only because somebody else's positive right to access the
court is barred by operation of law. As against the 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.
36. The right to property is now considered to be not only
constitutional or statutory right but also a human right.
Human rights have already been considered in realm of
individual rights such as right to health, right to livelihood,
right to shelter and employment etc. But now human rights
are gaining a multi faceted dimension. Right to property is
also considered very much a part of the new dimension.
Therefore, even claim of adverse possession has to be read
in that context.
37. The changing attitude of the English Courts is quite
visible from the judgment of Beaulane Properties Ltd. v. 1
Palmer (2005) 3 WLR 554. The Court here tried to read the
human rights position in the context of adverse possession.
But what is commendable is that the dimension of human
rights have widened so much that now property dispute
issues are also being raised within the contours of human
rights. With the expanding jurisprudence of the European
Courts of Human Rights, the Court has taken an unkind
view to the concept of adverse possession.
38. Paragraphs from 26 to 29 of Hemaji Waghaji Jat
(supra) are set out as under:-
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 1
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 2
to 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.” 2
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.”
39. In Hemaji Waghaji Jat case, this Court ultimately
observed as under: 2
“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
possession of the property of the true owner. The
law ought not to benefit a person who in a
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
legitimising possession of a rank trespasser and
compelling the owner to lose his possession only
because of his inaction in taking back the
possession within limitation.”
Fifth Amendment of the U.S. Constitution – a
principle of a civilized society
40. Another important development in the protection of
property rights was the Fifth Amendment. James
Madison was the drafter and key supporter for the Fifth
Amendment. The Fifth Amendment states: “nor shall
private property be taken for public use, without just
compensation”. The main issue is to pay just
compensation for acquiring the property. There are
primarily two situations when a landowner may obtain
compensation for land officially transferred to or 2
depreciated by the government. First, an owner may be
entitled to compensation when a governmental entity
intentionally acquires private property through a formal
condemnation proceeding and without the owner’s
consent. The State’s power to take property is
considered inherent through its eminent domain powers
as a sovereign. Through the condemnation proceedings,
the government obtains the necessary interest in the
land, and the Fifth Amendment requires that the
property owner be compensated for this loss.
41. The second situation requiring compensation
under Fifth Amendment occurs when the government
has not officially acquired private property through a
formal condemnation proceeding, but “nonetheless
takes property by physically invading or appropriating
it”. Under this scenario, the property owner, at the
point in which a “taking” has occurred, has the option
of filing a claim against the government actor to recover
just compensation for the loss. When the landowner
sues the government seeking compensation for a taking, 2
it is considered an inverse condemnation proceeding,
because the landowner and not the government is
bringing the cause of action.
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. 2
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 2
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 2
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. 2
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.
52. This Special Leave Petition is dismissed with costs of
Rs.50,000/- (Rupees Fifty Thousand only) to be paid by the
State of Haryana for filing a totally frivolous petition and
unnecessarily wasting the time of the Court and
demonstrating its evil design of grabbing the properties of
lawful owners in a clandestine manner. The costs be
deposited within four weeks from the date of pronouncement
of this judgment. In this petition, we did not issue notice to
the defendants, therefore, we direct that the costs be
deposited with the National Legal Services Authority for
utilizing the same to enable the poor litigants to contest their
cases. 2
53. This Special Leave Petition being devoid of any merit is
accordingly dismissed.
.….………………………..J.
(Dalveer Bhandari)
….………………………..J.
(Deepak Verma)
New Delhi:
September 30, 2011
No comments:
Post a Comment